[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]




 
                 EXAMINING EPA'S PREDETERMINED EFFORTS 
                   TO BLOCK THE PEBBLE MINE, PART II

=======================================================================

                                HEARING

                               BEFORE THE

              COMMITTEE ON SCIENCE, SPACE, AND TECHNOLOGY
                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED FOURTEENTH CONGRESS

                             SECOND SESSION

                               __________

                             April 28, 2016

                               __________

                           Serial No. 114-75

                               __________

 Printed for the use of the Committee on Science, Space, and Technology
 
 
 
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              COMMITTEE ON SCIENCE, SPACE, AND TECHNOLOGY

                   HON. LAMAR S. SMITH, Texas, Chair
FRANK D. LUCAS, Oklahoma             EDDIE BERNICE JOHNSON, Texas
F. JAMES SENSENBRENNER, JR.,         ZOE LOFGREN, California
    Wisconsin                        DANIEL LIPINSKI, Illinois
DANA ROHRABACHER, California         DONNA F. EDWARDS, Maryland
RANDY NEUGEBAUER, Texas              SUZANNE BONAMICI, Oregon
MICHAEL T. McCAUL, Texas             ERIC SWALWELL, California
MO BROOKS, Alabama                   ALAN GRAYSON, Florida
RANDY HULTGREN, Illinois             AMI BERA, California
BILL POSEY, Florida                  ELIZABETH H. ESTY, Connecticut
THOMAS MASSIE, Kentucky              MARC A. VEASEY, Texas
JIM BRIDENSTINE, Oklahoma            KATHERINE M. CLARK, Massachusetts
RANDY K. WEBER, Texas                DON S. BEYER, JR., Virginia
JOHN R. MOOLENAAR, Michigan          ED PERLMUTTER, Colorado
STEVE KNIGHT, California             PAUL TONKO, New York
BRIAN BABIN, Texas                   MARK TAKANO, California
BRUCE WESTERMAN, Arkansas            BILL FOSTER, Illinois
BARBARA COMSTOCK, Virginia
GARY PALMER, Alabama
BARRY LOUDERMILK, Georgia
RALPH LEE ABRAHAM, Louisiana
DARIN LaHOOD, Illinois

                            C O N T E N T S

                             April 28, 2016

                                                                   Page
Witness List.....................................................     2

Hearing Charter..................................................     3

                           Opening Statements

Statement by Representative Lamar S. Smith, Chairman, Committee 
  on Science, Space, and Technology, U.S. House of 
  Representatives................................................     6
    Written Statement............................................     8

Statement by Representative Eddie Bernice Johnson, Ranking 
  Member, Committee on Science, Space, and Technology, U.S. House 
  of Representatives.............................................    11
    Written Statement............................................    13

                               Witnesses:

The Honorable Dennis McLerran, Administrator, U.S. Environmental 
  Protection Agency, Region 10
    Oral Statement...............................................    15
    Written Statement............................................    19
Discussion.......................................................    26

             Appendix I: Answers to Post-Hearing Questions

The Honorable Dennis McLerran, Administrator, U.S. Environmental 
  Protection Agency, Region 10...................................    60

            Appendix II: Additional Material for the Record

Documents submitted by by Representative Suzanne Bonamici, 
  Committee on Science, Space, and Technology, U.S. House of 
  Representatives................................................    68

Documents submitted by Representative Donald Beyer, Committee on 
  Science, Space, and Technology, U.S. House of Representatives..    88

Documents submitted by Representative John R. Moolenaar, 
  Committee on Science, Space, and Technology, U.S. House of 
  Representatives................................................    97

Documents submitted by Representative Eddie Bernice Johnson, 
  Ranking Member, Committee on Science, Space, and Technology, 
  U.S. House of Representatives..................................   110

               Appendix III: Slides Shown During Hearing


Slides submitted by Representative Lamar Smith, Chairman, 
  Committee on Science, Space, and Technology, U.S. House of 
  Representatives................................................   114

Slides submitted by Representative Randy Neugebauer, Committee on 
  Science, Space, and Technology, U.S. House of Representatives..   116

Slides submitted by Representative Bill Posey, Committee on 
  Science, Space, and Technology, U.S. House of Representatives..   117

Slides submitted by Representative Mark Takano, Committee on 
  Science, Space, and Technology, U.S. House of Representatives..   118

Slides submitted by Representative Brian Babin, Committee on 
  Science, Space, and Technology, U.S. House of Representatives..   121

Slides submitted by Representative Gary Palmer, Committee on 
  Science, Space, and Technology, U.S. House of Representatives..   122

Slides submitted by Representative John R. Moolenaar, Committee 
  on Science, Space, and Technology, U.S. House of 
  Representatives................................................   124

Slides submitted by Representative Bruce Westerman, Committee on 
  Science, Space, and Technology, U.S. House of Representatives..   127

Slides submitted by Representative Darin LaHood, Committee on 
  Science, Space, and Technology, U.S. House of Representatives..   128

Slides submitted by Representative Barry Loudermilk, Committee on 
  Science, Space, and Technology, U.S. House of Representatives..   129


                 EXAMINING EPA'S PREDETERMINED EFFORTS



                   TO BLOCK THE PEBBLE MINE, PART II

                              ----------                              


                        THURSDAY, APRIL 28, 2016

                  House of Representatives,
               Committee on Science, Space, and Technology,
                                                   Washington, D.C.

    The Committee met, pursuant to call, at 10:05 a.m., in Room 
2318, Rayburn House Office Building, Hon. Lamar Smith [Chairman 
of the Committee] presiding.

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    Chairman Smith. The Committee on Science, Space, and 
Technology will come to order. Without objection, the Chair is 
authorized to declare recesses of the Committee at any time.
    Welcome to today's hearing entitled ``Examining EPA's 
Predetermined Efforts to Block the Pebble Mine, Part II.''
    I'll recognize myself for an opening statement and then the 
Ranking Member.
    Today, we will examine the Environmental Protection 
Agency's efforts to block the Pebble Mine project from 
development before it even applied for a permit. This morning, 
the Committee will hear testimony from EPA Region 10 
Administrator Dennis McLerran.
    And according to the EPA, Regional Administrator McLerran 
is the ``decision-maker'' for EPA matters that involve the 
Pebble Mine. It was his decision to improperly use the Clean 
Water Act to stop the Pebble Mine before the project submitted 
a formal plan, before it submitted a permit application, and 
before due process was able to proceed.
    I am certain that we will hear from our colleagues on the 
other side of the aisle about the EPA Inspector General's 
report that appeared to absolve the Agency of any 
predetermination or bias in this matter. However, the IG's 
report is flawed. It took a top-down analytical approach and 
focused only on Administrator McLerran and acting Assistant 
Administrator Nancy Stoner. It did not focus at all on the EPA 
employees involved in the Pebble Mine matter, nor did it 
discover the actions taken by those who funneled information up 
to Administrator McLerran.
    In the course of the Committee's investigation, we 
discovered that EPA employees colluded with third-party Pebble 
Mine opponents. They sought to deliberately establish a record 
that pointed to one outcome: the Pebble Mine will be excluded 
from the regular permitting process and should be stopped.
    Recently, the Committee conducted a deposition of former 
EPA employee Phil North, the EPA employee who, on the 
advisement of environmental groups, chose not to voluntarily 
speak to Congress. Mr. North's testimony is important to 
understand the mindset of the EPA employees under the authority 
of Administrator McLerran.
    Mr. North readily admitted to the Committee that he opposed 
the Pebble Mine and advocated among his colleagues that the 
Agency use the Clean Water Act to stop it. Mr. North and his 
EPA colleagues arrived at this conclusion before the Agency had 
produced any scientific information. While the EPA has been 
quick to minimize Mr. North's role in the Agency's decision-
making process, his influence to promote the idea to stop the 
Pebble Mine is clear.
    Mr. North admitted under oath that he provided edits to an 
official petition letter from a third party sent to 
Administrator McLerran. The letter requested that the EPA stop 
the Pebble Mine before it applied for any permits. Mr. North 
asserted that it was, in fact, his duty as a federal government 
employee to provide assistance to a group that petitioned the 
government and the EPA.
    The EPA Inspector General and the EPA Office of Ethics 
apparently do not agree. Both determined that Mr. North's 
actions constitute a possible misuse of his federal government 
position.
    Mr. North's testimony also provided a clear depiction of 
the lack of adherence to official EPA policies that went on 
under Administrator McLerran's watch. Mr. North admitted that 
he and other EPA employees within Region 10 used personal email 
accounts to conduct official EPA business. Mr. North discussed 
matters that related to Pebble Mine on his personal email with 
third-party groups opposed to the project.
    Nearly all of these official records are now unavailable to 
the Committee for review because Mr. North and the Agency 
failed to preserve them. We may never know the true extent to 
which Mr. North and EPA employees worked with outside groups to 
establish a process to stop the Pebble Mine before it applied 
for a permit. But we know enough to conclude that EPA employees 
violated ethical standards by giving outside groups 
unprecedented access to internal EPA deliberations, allowing 
for close collaboration on agency actions and strategy.
    Documents obtained from the EPA show that Administrator 
McLerran's trusted advisor on Pebble Mine matters, Richard 
Parkin, presented only one option to Administrator McLerran: 
that the EPA use the Clean Water Act to stop the mine before it 
even applied for a permit.
    The EPA should be reminded that it was Congress that 
established the Clean Water Act. It is not the decision of 
activist EPA employees to decide to circumvent the processes 
established in the Clean Water Act.
    The EPA and anti-Pebble Mine groups continue to assert that 
the pre-application process EPA used to stop the Pebble Mine is 
one that will ultimately save the mining company time and 
money. But it is not the Agency's place to decide how a company 
should spend its resources. If the Pebble Mine chooses to use 
its resources to move forward with the permitting process, then 
it should be allowed to do so.
    Moreover, it appears that the EPA will use this case as 
precedent to block additional projects throughout the United 
States. If we allow the EPA to pursue this path of action, the 
Agency will have set the precedent to tell states, local 
governments, and even private citizens how they can develop 
their land before a permit application has ever been filed. 
This is harmful to economic development and dangerous to the 
democratic process.
    This committee should support due process, protect the 
permitting process, and insist that EPA actions be based on 
objective science. The EPA violated all of these tenets in its 
evaluation of the Pebble Mine. The Committee should not allow 
EPA to stop projects before they even apply for a permit. This 
would be contrary to the rule of law and the principles of 
scientific analysis.
    The inappropriate actions by the EPA employees, the 
misapplication of the law, and lack of decision-making based on 
science throughout this process requires that the Agency cease 
any further action against the Pebble Mine. The EPA should 
allow the established permitting process to run its course and 
determine the future of this project. Science and due process 
should lead the way, not predetermined outcomes by activist EPA 
employees.
    [The prepared statement of Chairman Smith follows:]
    
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    Chairman Smith. That concludes my opening statement, and 
the Ranking Member Ms. Johnson, the gentlewoman from Texas, is 
recognized for hers.
    Ms. Johnson. Thank you very much, Chairman Smith, and let 
me welcome Mr. McLerran. I appreciate your commitment to public 
service, and I look forward to your testimony.
    We've been here twice before with hearings on EPA and the 
proposed Pebble Mine in Bristol Bay, Alaska. In August 2013, 
the Committee held a hearing on the EPA's Bristol Bay Watershed 
Assessment. Last November, it held a second hearing titled 
``Examining EPA's Predetermined Efforts to Block the Pebble 
Mine.'' That hearing included the CEO of the Pebble 
Partnerships and two of the company's paid consultants.
    I am glad we're finally hearing from an EPA witness, Mr. 
Dennis McLerran. As the EPA Administrator of Region 10 that 
includes Oregon, Washington, Idaho, and Alaska, he plays a 
pivotal role in helping EPA carry out its critical mission of 
protecting human health and environment.
    Based on the title of today's hearing, I expect that we 
will hear a lot of claims of unprecedented use by EPA of its 
section 404 authority, bias by the EPA in its watershed 
assessment, and the EPA collusion with outside parties in 
initiating the 404(c) action. My colleagues are likely to 
produce selective quotes and emails to support that narrative. 
That is certainly their right.
    But I think the fundamental facts are already clear. First, 
the Clean Water Act gives EPA the authority to initiate 404(c) 
action before a permit is applied for. And indeed, EPA did just 
that in 1988 under President Reagan. EPA's action in the Pebble 
Mine case was certainly not unprecedented or unlawful.
    Secondly, the independent Inspector General for EPA 
examined the question of potential bias or collusion in support 
of a predetermined outcome in its Pebble Mine actions. And the 
IG reported in January of this year that it found no evidence 
of bias or predetermined outcome. That is about as clear a 
statement of fact as IG can make.
    Third, while some members may attempt to cast doubt over 
the entire EPA watershed assessment due to the behavior of one 
EPA employee Mr. Phil North, the reality is that the assessment 
was a result of multiple meetings with Pebble Partnership, 
environmental, and other stakeholder groups over multiple years 
and extensive reviews of the relevant scientific literature.
    The resulting assessment, which was peer-reviewed twice, 
had 20 cosponsors, of which Mr. North was only one. As the EPA 
IG stated in its January 2016 report, ``We found no evidence of 
bias in how EPA conducted the assessment, and we also found no 
evidence that the EPA predetermined the outcome of the 
assessment to initiate a CWA section 401(c) process in the 
Bristol Bay watershed.
    Now, I don't expect the facts that I have just laid out to 
dissuade those who have decided that uncovering an EPA 
conspiracy is to be the predetermined outcome of this hearing, 
but I think it is important that they be placed in the public 
record.
    Mr. Chairman, commercial fishermen in Bristol Bay, 
environmental groups, Native Alaskan tribes, and even jewelry 
companies such as Tiffany & Company were deeply concerned that 
a mine in Bristol Bay would destroy the splendor and unspoiled 
beauty of this unique watershed and cripple the economic 
livelihood of thousands of its residents who rely on its world-
renowned salmon fisheries. All those groups called on the EPA 
to take action to protect this critical environmental resource.
    I hope that my majority colleagues will realize that the 
use of 404(c) process even in Bristol Bay, Alaska, is not a 
political issue. It is about protecting a unique environmental 
resource. In that regard, I find it ironic that EPA has been 
condemned in recent weeks for doing too little to protect the 
water in Flint, Michigan, and at the same time as they are 
being condemned by some of the same committee for doing too 
much to protect the water in Bristol Bay, Alaska.
    Lastly, I'm attaching a minority report to my statement 
that takes a deeper look at how the 401(c) has been applied in 
the past and the tactics the Pebble Partnership has employed in 
an attempt to control the public message regarding their 
controversial mine in Bristol Bay.
    I believe, as others have said, that the proposed Bristol 
mine--Pebble Mine in Bristol Bay is simply the wrong mine in 
the wrong place. But I also believe that section 401(c) of the 
Clean Water Act has been used by EPA in the right way in the 
right place. This law was written with places like Bristol Bay 
in mind.
    The law has not been widely used over the past four 
decades, nor should be--should it be. It was designed to be 
used in special cases where potential development poses an 
extreme adverse threat to U.S. waters. This is exactly what the 
proposed Pebble Mine in Bristol Bay would do.
    I thank you, Mr. Chairman, and I yield back.
    [The prepared statement of Ms. Johnson follows:]
    
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    Chairman Smith. Thank you, Ms. Johnson.
    The gentlewoman from Oregon, Ms. Bonamici.
    Ms. Bonamici. Mr. Chairman, may I be recognized for a 
minute to speak out of turn?
    Chairman Smith. The gentlewoman is recognized.
    Ms. Bonamici. Thank you, Mr. Chairman, and Committee 
Members.
    I want to recognize Marcy Gallo, the Staff Director for the 
Environment Subcommittee, who is leaving the Committee to 
continue serving Congress at the Congressional Research 
Service. This is her last hearing with us.
    I value her commitment, her tireless work, and I know the 
other Committee Members share my respect for her. I especially 
appreciate her collaborative approach to working with 
stakeholders on the Tsunami Warning Education Research Act and 
the weather bill.
    All of us here know how much our staff takes on and how 
hard they work, often for very little credit. So Marcy, we 
thank you. We will miss you, and we wish you the best of luck 
in your next adventure.
    Chairman Smith. Do you want to stand up so you can get 
recognition?
    Ms. Bonamici. Thank you, Mr. Chairman. I yield.
    Chairman Smith. I thank the gentlewoman for bringing that 
up.
    I also have to not pass up the opportunity of mentioning 
that there's another staff member of the committee sitting in 
the front row presumably with his family, John Piazza. Are 
those your three daughters, John? One daughter, two daughters, 
three daughters, all of them. Okay. Anyway, it's unusual to see 
you looking up at us from that particular position, but we're 
glad you're here with your family.
    Ms. Johnson. There are other staff members with families 
out here.
    Chairman Smith. Oh, other staff members with family there 
as well, good. Okay. Thanks.
    Let me proceed and introduce our witness today. He is the 
Hon. Dennis McLerran, EPA's Regional Administrator for Region 
10. Administrator McLerran previously served as Executive 
Director of the Puget Sound Clean Air Agency and has been 
involved in a variety of state, local, and federal issues in 
both the public and private sectors.
    Administrator McLerran has over 30 years of experience as 
an advocate, attorney, and Administrator. Much of his work has 
focused on environmental land-use and climate issues. 
Administrator McLerran received his bachelor's degree from the 
University of Washington and his law degree from the Seattle 
University School of Law.
    We welcome you and look forward to your testimony.

          STATEMENT OF DENNIS MCLERRAN, ADMINISTRATOR,

         U.S. ENVIRONMENTAL PROTECTION AGENCY REGION 10

    Mr. McLerran. Good morning, Chairman Smith, Ranking Member 
Johnson, and Members of the Committee. Okay. Excuse me.
    Good morning, Chairman Smith and Ranking Member Johnson and 
Members of the Committee. I am Dennis McLerran, the Regional 
Administrator for EPA Region 10, which covers the States of 
Oregon, Washington, Idaho, Alaska, and 271 tribal governments 
within those four States.
    In May of 2010, several federally recognized tribes from 
the Bristol Bay watershed in Alaska petitioned EPA to use its 
Clean Water Act section 404(c) authority to restrict the 
discharge of fill material from the proposed Pebble Mine. EPA 
also received similar requests from a diverse group of 
stakeholders, while others requested that EPA refrain from 
taking action.
    The groups the supported EPA's use of 404(c) were deeply 
concerned that the largest open pit mine ever proposed in North 
America could potentially be opened within one of the Western 
Hemisphere's most productive and vulnerable watersheds.
    The economic and cultural value of the Bristol Bay 
watershed is immense. In 2009, it supported about 14,000 full- 
and part-time jobs and generated an estimated $480 million in 
direct economic expenditures and sales. And in addition, for 
over 4,000 years, it has served as a significant subsistence 
fishery to Alaska Native people, who may be among the last 
remaining salmon-based subsistence cultures in the world. For 
these reasons, EPA took very seriously these local concerns 
raised about a mining project that had the potential for 
significant environmental harm to this valuable and vulnerable 
ecosystem.
    EPA staff and management deliberated for months about how 
to respond to these requests, and we ultimately decided not to 
initiate EPA's section 404(c) authority at the time of the 
petitions because we wanted to develop a solid understanding of 
the watershed and the potential risks of proposed mining 
activities before deciding whether or not to exercise our 
authorities regarding the watershed.
    Instead, in February of 2011, consistent with the Clean 
Water Act, section 104, I announced EPA's intent to conduct an 
ecological risk assessment whose purpose was to characterize 
the biological and mineral resources of the Bristol Bay 
watershed, to increase understanding of the potential risks of 
large-scale mining on the region's fish resources, and to 
inform future decisions by government agencies and others 
related to protecting and maintaining the chemical, physical, 
and biological integrity of the watershed.
    To help us collect, evaluate, and summarize information 
about the Bristol Bay watershed and to assess potential risks 
to salmon and other resources from large-scale mining, EPA 
brought in scientists from multiple federal agencies. 
Consistent with EPA's authorities under the Clean Water Act and 
relevant guidelines and procedures, EPA committed to a public 
process to provide an opportunity to engage with all interested 
stakeholders.
    And, for example, EPA consulted with 20 tribes from the 
watershed, most of whom supported EPA's proposed assessment. 
And EPA also formed an Intergovernmental Technical Team to get 
individual input from federal agencies, the State of Alaska, 
and tribal governments in the Bristol Bay watershed.
    EPA also released two drafts of the assessment for public 
comment. In total, eight public meetings were attended by 
approximately 2,000 people, and more than 1.1 million comments 
were submitted. The Pebble Limited Partnership itself submitted 
over 1,300 pages of written comments on the first draft and 
over 450 pages on the second draft and participated in the 
public meetings.
    EPA staff, including EPA's Administrator and me as the 
Regional Administrator met with Pebble executives, state 
officials, and other interested organizations to solicit their 
input.
    In addition to creating and maintaining an open and 
transparent process, EPA also sought to guarantee that the 
assessment incorporated high-quality data and that all findings 
were scientifically sound. In developing the assessment EPA 
followed all data quality and peer-review requirements for a 
highly influential scientific assessment, as outlined by the 
Office of Management and Budget in the White House.
    A recent independent review by EPA's Inspector General 
confirmed that the Agency followed all applicable processes and 
procedures, and we also conducted extensive peer review, as was 
mentioned in the opening statements, with 12 independent peer-
review experts in mine engineering, salmon fisheries biology, 
aquatic ecology, aquatic toxicology, hydrology, wildlife 
ecology, and Alaska Native cultures. And at a public meeting in 
August of 2012, Pebble and other stakeholders provided feedback 
directly to peer-reviewers.
    The Bristol Bay Assessment found that the Bristol Bay 
watershed, while enormously productive ecologically, is also 
deeply vulnerable to challenges posed by the construction and 
operation of large-scale mining. The assessment concludes that 
a large-scale mining would propose--would pose risks to salmon 
and tribal communities and that those communities have depended 
on those resources for thousands of years.
    Depending on the size of the mine, EPA estimates that from 
24 to 94 miles of salmon-supporting streams and 1,300 to 5,350 
acres of wetlands, ponds, and lakes would be destroyed. And 
extensive quantities of mine waste, leachates, and wastewater 
would have to be collected, stored, and treated and managed 
during mining operations and long after mining concludes.
    In addition to these impacts, our assessment identified 
risks from potential accidents and failures. Section 404(c) of 
the Clean Water Act specifically authorizes EPA to prohibit the 
specification of--or deny or restrict the use of any defined 
areas as a disposal site for dredged or fill material whenever 
the Administrator determines that such disposal would cause 
unacceptable adverse effects.
    EPA's 44-year history shows we've only used that authority 
judiciously and sparingly, and EPA has taken final action under 
404(c) authority only 13 times while the Corps of Engineers has 
issued millions of 404 permits during that same time period.
    I would also say that our proposed action in Bristol Bay is 
not a veto. It's not a final action. And the proposed 
determination does not prevent Pebble Limited Partnership from 
filing any permit applications, including a Clean Water Act 
section 404(c) permit--404 permit application. Rather, this 
proposed determination addresses where and what level of 
impacts from the discharge of dredged or fill material related 
to mining the Pebble deposit could result in unacceptable 
adverse effects on important water resources near the deposit.
    The EPA has consistently demonstrated this willingness to 
collaborate with federal and state regulatory agencies and 
mining companies to ensure that projects can move forward in 
ways that protect water quality in the health of communities.
    In conclusion, EPA is relying on strong science to support 
our review under the Clean Water Act. I am extremely proud of 
the work that EPA staff have done in compiling and analyzing 
the science; in conducting an inclusive, open, and transparent 
process; and in exhibiting a dignified professionalism through 
the work on the Bristol Bay watershed.
    Thank you, Chairman Smith, Ranking Member Johnson, and 
members of the committee, for this opportunity to appear before 
you today, and I look forward to answering your questions.
    [The prepared statement of Mr. McLerran follows:]
    
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    Chairman Smith. Okay. Thank you, Mr. McLerran.
    And I'll recognize myself for questions.
    Let me say at the outset that I do not feel that I or this 
Committee should prejudge Pebble Mine until the process has 
been completed. I do feel that the process has been subverted 
and that Pebble Mine has not gotten their day in court. I do 
think that Pebble Mine is entitled to fair process and an 
objective evaluation, which they had not yet received.
    And my first question is this: Do you think it's 
appropriate for EPA employees to work with outside groups and 
try to influence the EPA to arrive at a particular decision? In 
other words, in this case, we have at least one employee--and 
there may be others--who tried to make sure that your decision 
was on one side rather than give you objective information. If 
you had an employee who attempted to do that, what would you 
do?
    Mr. McLerran. So at EPA we do have an open door and an 
inclusive process where we listen to advocates on all sides of 
issues.
    Chairman Smith. Right.
    Mr. McLerran. And we do have staff that form opinions 
about----
    Chairman Smith. Right. Are you familiar with what Mr. North 
has told us under oath about his efforts to edit letters, edit 
documents, and try to influence the permitting process? Do you 
agree that that was legitimate?
    Mr. McLerran. So I have not seen Mr. North's testimony in 
front of the committee. That has not been distributed to us.
    Chairman Smith. Right, but you know we have asserted that 
Mr. North tried to influence the process and maybe other 
employees as well. Are you aware of any employee besides Mr. 
North who has tried to influence the process?
    Mr. McLerran. So, again, I would say the Inspector General 
has done a review of the work----
    Chairman Smith. I'm not asking about that. I'm asking if 
you know of any employees who have tried to influence the 
process.
    Mr. McLerran. No, I don't.
    Chairman Smith. You do not? And are you aware of any 
activity by Mr. North that you would consider to be improper?
    Mr. McLerran. So we agreed with the--concurred with the 
findings of the Inspector General that there could have been 
conduct that was a misuse of position, and we've followed 
through and done appropriate training----
    Chairman Smith. Okay.
    Mr. McLerran. --for our employees.
    Chairman Smith. Are you going to make any effort to try to 
determine if one or more employees did misuse their position?
    Mr. McLerran. So----
    Chairman Smith. No, but you had the Inspector General's 
report saying that might have occurred. Are you going to follow 
through and make any effort to see if that occurred and take 
any action?
    Mr. McLerran. So the Inspector General's review was 
comprehensive. It was broad and looked at the activities of----
    Chairman Smith. Right. I'm not asking about the Inspector 
General's report. I'm asking about your future actions. Are you 
going to take any initiative to try to determine if any 
employee misused their position?
    Mr. McLerran. So I've been very involved in this process 
from----
    Chairman Smith. Really, that's a yes or no answer. Are you 
going to investigate to see if any employee has misused their 
position?
    Mr. McLerran. So I have reviewed the actions of our 
employees, and I'm satisfied that the employees have conducted 
themselves appropriately.
    Chairman Smith. So you disagree with the Inspector General 
that someone may have misused their position or you agree with 
them?
    Mr. McLerran. So, again, we concurred with the findings of 
the Inspector General.
    Chairman Smith. Okay. And you have made--then have you 
conducted an investigation to find out if anybody misused their 
position and you have concluded that no one did?
    Mr. McLerran. So, again, I've been involved in this process 
from the very beginning and have been engaged with the 
employees that work to----
    Chairman Smith. Right. Are you going to--have you conducted 
any investigation?
    Mr. McLerran. So we have not conducted an investigation----
    Chairman Smith. Okay. Do you intend to conduct any 
investigation?
    Mr. McLerran. No, sir. Why not when you have an IG report 
saying people may have misused their position?
    Mr. McLerran. So, again, the Inspector General's report was 
comprehensive.
    Chairman Smith. Right.
    Mr. McLerran. I've been involved in----
    Chairman Smith. Aren't you curious whether the Inspector 
General might have discovered that there was a misuse of 
position, and why wouldn't you follow up and try to find out if 
that occurred?
    Mr. McLerran. So, again, the review of the Inspector 
General was comprehensive----
    Chairman Smith. I understand that. You've said that three 
times. I'm asking you if you are going to follow up, and you 
said you are not going to conduct any investigation to see if 
any employee misused their position?
    Mr. McLerran. We don't believe that's necessary or 
appropriate.
    Chairman Smith. That's astounding to me that an 
Administrator would not want to find out if their employees 
misused their position as suggested by the IG as a possibility. 
I'm just amazed that there isn't more accountability.
    Let me go to my next question, and that is that, according 
to the Code of Federal Regulations, when the EPA issues a 
proposed Notice of Determination, the Army Corps of Engineers 
cannot issue a permit. First of all, how many other times under 
404(c) have you issued a proposed Notice of Determination?
    Mr. McLerran. So to my knowledge--and this is on EPA's 
website--there are 13 times where we've finalized 404(c) 
action. Two of those involved situations prior to----
    Chairman Smith. The proposed Notice of Determination. Okay. 
And you do agree with the Code of Federal Regulations that this 
means that the Army Corps of Engineers cannot now grant a 
permit. You can still apply, you can still conduct an analysis, 
but they cannot grant a permit, is that correct?
    Mr. McLerran. Once a Notice of Proposed Determination is 
made, the----
    Chairman Smith. Right.
    Mr. McLerran. --Corps of Engineers, under our rules, cannot 
issue a permit----
    Chairman Smith. Right.
    Mr. McLerran. --but they can----
    Chairman Smith. And that is exactly why----
    Mr. McLerran. --receive, for example----
    Chairman Smith. --I think you have wrongly----
    Mr. McLerran. --and initiate the----
    Chairman Smith. --subverted the process.
    Mr. McLerran. --legal process.
    Chairman Smith. Yes. I think you have subverted the process 
by issuing that proposed Notice of Determination that they 
can't apply for a permit now. They--you should have followed 
due process. I regret that you did not.
    My time is expired, and the gentlewoman from Texas is 
recognized for her questions.
    Ms. Johnson. Thank you, Mr. Chairman.
    In your testimony, Mr. McLerran, you stated that several 
federally recognized tribes requested EPA's use of 404(c) 
authority to restrict the discharge of the proposed Pebble 
Mine. What specifically did the group cite as reasons for 
requesting EPA's assistance? And in general, what are the 
potential impacts of a mine of this type being proposed by 
Pebble?
    Mr. McLerran. So the groups that requested that EPA take a 
look at our Clean Water Act authorities with respect to Bristol 
Bay are broad and wide-ranging. There are a number of federally 
recognized tribes, but we also received requests from literally 
hundreds of organizations, including hunting and fishing 
organizations, environmental organizations, tribal 
organizations, native corporations and others.
    And people were concerned about the particular location and 
scope and scale of this proposed mine. This would be the 
largest--arguably the largest open pit mine ever constructed in 
North America. Its location is at a very, very sensitive spot 
at the very headwaters of the Nushagak and Kvichak Rivers, 
which are in the Bristol Bay watershed, and Bristol Bay 
watershed produces 50 percent of the remaining world's wild 
sockeye salmon. It's an incredible economic resource. It's--
creates many thousands of jobs in Alaska and supports a 
subsistence culture.
    So the communities there were quite concerned about the 
location of this mine, the characteristics of this mine, and 
what its impacts might be on the salmon in that watershed that 
are a huge economic driver, as well as on their cultures, which 
have been in place for many thousands of years and continue 
today as an active subsistence culture.
    Ms. Johnson. Critics have EPA's decision to protect the 
Bristol Bay watershed continually claim that EPA was biased 
toward initiating a section 404(c) action and that EPA 
conducted the watershed assessment with the similar goal in 
mind. One would hope that this kind of conspiracy language 
would have been put to rest after the EPA Office of Inspector 
General released its report in January reviewing the actions of 
EPA and its decision to conduct an assessment.
    The IG found no evidence of bias in how EPA conducted the 
assessment of Bristol Bay watershed or that the EPA 
predetermined the assessment outcome. What steps did EPA take 
to ensure that the assessment would be objective? And who was 
involved in the--developing the Bristol Bay Watershed 
Assessment?
    Mr. McLerran. So the process--as the person who initiated 
the Bristol Bay Watershed Assessment, I can tell you that I 
initiated it because I had a genuine interest in learning more 
about what the impacts of large-scale mining might be on the 
fishery resource in the Bristol Bay watershed. And that process 
was a very open, transparent, and inclusive process that 
included more than eight public meetings. It included two 
rounds of peer-review. The peer-reviewers were independent. 
They were independently selected. We gave the public, including 
the Pebble Partnership, the opportunity to comment on who 
should be selected as the peer-reviewers. There were many 
opportunities for testimony and engagement.
    We met directly with the Pebble Partnership and both 
opponents and proponents of mining in the watershed, and the 
watershed assessment was conducted over a three-year period in 
which we engaged with multiple scientists, a large group of 
federal agencies, as well as our own scientists, and engaged in 
a very open and transparent process of developing what I 
believe is an incredible piece of work in looking at what the 
impacts in this watershed might be on the fishery.
    Ms. Johnson. And you believe that this watershed assessment 
was necessary before EPA could initiate the 404(c) process?
    Mr. McLerran. That's correct. I felt that when we received 
the request for action using 404(c), we did not yet have enough 
information to fully inform a decision. So we felt that it was 
important to do some science. We used EPA's highly influential 
scientific assessment process, which is a very rigorous and 
open and transparent process. There were many individuals that 
did give us input on that, many experts, and the testimony that 
we received on the watershed assessment from a wide range of 
individuals was very extensive. We got over 1.1 million 
comments on the watershed assessment.
    Ms. Johnson. Thank you very much.
    Chairman Smith. Thank you, Ms. Johnson.
    The gentleman from Texas, Mr. Neugebauer, is recognized for 
his questions.
    Mr. Neugebauer. Thank you, Mr. Chairman.
    Mr. McLerran, in May 2010 you received a petition letter 
written by Alaska attorney Jeff Parker requesting EPA use the 
404(c) process in a preemptive manner to stop the Pebble Mine 
before the project had any chance for permitting. Is that 
correct?
    Mr. McLerran. That is correct.
    Mr. Neugebauer. And I'm going to put a slide up here on a--
--
    [Slide.]
    Mr. Neugebauer. And this is the testimony of Phil North. 
And the question is are you aware that Mr. North provided Jeff 
Parker with edits to the petition letter before it was sent to 
EPA?
    Mr. McLerran. I have recently learned that.
    Mr. Neugebauer. But you did not know it then, right?
    Mr. McLerran. I do not.
    Mr. Neugebauer. Okay. And did you know Mr. North said that 
he believed his edits strengthened the strength of the petition 
letter? So his involvement, he felt like, did influence the 
final outcome. Do you agree with that?
    Mr. McLerran. So I would say that we received requests from 
literally thousands of individuals to take a look at the 
Bristol Bay watershed and the potential impact of large-scale 
mining there----
    Mr. Neugebauer. So do you think as the manager of EPA then, 
is it appropriate that EPA employees assist a third-party group 
in editing a petition letter to the Agency?
    Mr. McLerran. So I would not have authorized that or 
approved of that, but again, I think it's really not very 
relevant because we receive requests from a broad range of 
individuals. And we didn't act on that petition. We--at that 
time. We engaged in developing a scientific review that took 
over three years and was as extensive as I've previously 
testified.
    Mr. Neugebauer. Were you aware at that time that Mr. North 
was a supporter of EPA using the preemptive process in this 
particular case?
    Mr. McLerran. So, again, as I said earlier, we had 
employees who were supportive of taking 404(c) action; we had 
employees who felt we should wait. We had a wide range of views 
within the Agency based on the initial reviews that our staff 
did. My review of the situation was that we needed more 
science. We needed to develop----
    Mr. Neugebauer. And you are aware of the Inspector General 
report and said that there was possible misuse of position, is 
that correct?
    Mr. McLerran. I am aware of that.
    Mr. Neugebauer. Yes. So I think--here's the question I 
think I have, Mr. McLerran. If you were going to present 
something before a judge for a determination and you found out 
that the attorney on the other side was meeting with the judge 
and the judge was giving him some pointers on points that you 
might want to make when that case comes before his court, would 
you think that would be a fair process?
    Mr. McLerran. Well, that's a hypothetical that's quite 
different than the situation I had.
    Mr. Neugebauer. Well, I don't think it is, Mr. McLerran. 
But I think the point here is that we had people inside EPA 
that were going to have an influence on the process coaching 
outside groups on trying to determine the outcome before the 
process even began. And I think if you--you said to this 
congress--committee a while ago that you think it was an open 
and fair process. The example I just gave to you, you wouldn't 
think was a fair process. But that's exactly what was going on 
is you had people coaching--within EPA coaching the opposition 
as to what to say to get a desired outcome. Am I missing 
something here?
    Mr. McLerran. I think you are missing that we had staff who 
had different positions on this. I as the decision-maker took 
an approach that was different than what many of those folks 
advocated on both sides of this. The course that we decided to 
take was to do good science.
    Mr. Neugebauer. So you're okay with, you know, in the 
example I gave you, you're okay with the judge kind of coaching 
the prosecution on, you know, here's how we can get the outcome 
that we desire here, you need to say these things in your 
closing arguments? You would make this statement? You think 
that's a fair process then?
    Mr. McLerran. So, as I said earlier, I think your 
hypothetical is not----
    Mr. Neugebauer. Oh, it's not hypothetical.
    Mr. McLerran. --the same as a----
    Mr. Neugebauer. I mean, it's the very same example here of 
your employees coaching the people that were in opposition to 
this to help reach a desired outcome of that employee. And I 
just don't think the American people think that's the kind of 
government that they want.
    So I guess the question I would have to you, given the fact 
that there was a possible misuse of position found by the 
Inspector General, would you reconsider and let the 404(c) 
process move forward?
    Mr. McLerran. Sir, we are--we have been in the 404(c) 
process, and again, I think it's been a very open, transparent, 
and very inclusive process.
    Mr. Neugebauer. I'm sorry. I misspoke there. The 404 
process. In other words, you know, letting everybody then 
bringing that process forward and seeing if--through the NEPA 
process that they can justify that they would take the 
necessary precautions to meet any opposition to that project.
    Mr. McLerran. So, as I previously stated, even today the 
Pebble Partnership could apply for a 404 permit with the Corps 
of Engineers and initiate the NEPA process and that entire 
process. So we--and in fact, I personally believed that they 
would file for a 404 permit during the pendency of the 
watershed assessment process. If they chose not to, they 
continue to choose not to, but we have not precluded that 
process.
    Mr. Neugebauer. Well, but I think you just told the 
Chairman that, you know, you can't move forward with a 404 
based on your determination, so I'm confused. How--what is 
the--how does that work? I mean, what you're saying to me is 
you can apply for it but you're going to get turned down? I 
mean, how is that a good deal?
    Mr. McLerran. So, again, what our proposed determination 
put forward--and we have not completed that process; it's an 
incomplete process--was that we would impose restrictions on 
the scope and scale of mining in the watershed. So a 404 permit 
application could be applied for. It would go through that 
process, and then, should we determine at the end of the day 
that restrictions are appropriate in the watershed, then that 
would be resolved either through the 404(c) process or through 
the 404----
    Mr. Neugebauer. I want to go back to something--you keep 
saying that some of your employees were in favor of this 
process. We had one employee that--evidently, that the 
Inspector General found out that misused, but then now you've 
told the Chairman that you've really not investigated and don't 
intend to investigate whether other employees were actually 
acting in a position that would maybe misusing their position? 
Your position is because you used plural when you referred to 
some of the employees who were supportive of blocking this 
project but only one was identified here in the Inspector 
General report. So--but we're not going to check and see if 
anybody else is doing that? And you think it's inappropriate 
but you're not going to check on it?
    Mr. McLerran. Sir, again, as I stated, the Inspector 
General did a very comprehensive review. We feel it was a 
complete review. And I also have----
    Mr. Neugebauer. Well, the Inspector General----
    Mr. McLerran. --been involved----
    Mr. Neugebauer. --isn't going to make----
    Chairman Smith. The gentleman's----
    Mr. Neugebauer. --the decision on this----
    Chairman Smith. The gentleman's----
    Mr. Neugebauer. --project.
    Chairman Smith. I'm sorry to say the gentleman's time has 
expired, but I do want to clarify. A while ago in response to a 
question I asked, you agreed that the Army Corps of Engineers 
could not issue a permit once you had made your determination. 
Are you changing your testimony on that?
    Mr. McLerran. So, again, what I said is that the Corps of 
Engineers, during the pendency of a----
    Chairman Smith. In other words, Pebble can apply but they 
can't be approved. It's a ruse.
    Mr. McLerran. So that is not exactly the case. What--you 
know, what we have is a Notice of Proposed Determination that 
would place restrictions on the scale and size----
    Chairman Smith. A while ago----
    Mr. McLerran. The Pebble Partnership----
    Chairman Smith. --you told me that Corps of Engineers could 
not approve a permit because of the proposed determination.
    Mr. McLerran. So during the pendency of a proposed 
determination, our rules do provide that there would not be an 
issuance of a permit, but we haven't completed that process----
    Chairman Smith. Yes, I know----
    Mr. McLerran. --they're still in that process----
    Chairman Smith. --and we'll come back because----
    Mr. McLerran. --and----
    Chairman Smith. --there are others who have the time, but 
I'm going to revisit that because it seems to me you've 
contradicted yourself.
    Mr. McLerran. And I would like to----
    Chairman Smith. And the gentlewoman from Oregon, Ms. 
Bonamici, is recognized.
    Mr. McLerran. I would like to indicate that the Inspector 
General did identify potential misuse of the position by one 
employee, and they reviewed thousands of emails by multiple----
    Chairman Smith. But you're still not going to conduct any 
further investigation?
    Mr. McLerran. So we--and that employee is no longer with 
EPA, but we feel that we know the scope and scale of activities 
of our employees.
    Chairman Smith. The gentlewoman from Oregon is recognized.
    Ms. Bonamici. Thank you very much, Mr. Chairman. Welcome to 
the committee, Mr. McLerran. Nice to see you.
    There's been a lot of conversation this morning already 
about Mr. North, a former employee of the EPA, and I just want 
to record to clarify a few things. First of all, I'm reading 
from an EPA Region 10 job description. Mr. North was an 
ecologist. And part of the EPA job description for Mr. North 
was environmental liaison, performs liaison work with 
individuals in a variety of organizations on legislative 
proposals, regulations, policies, program issues, resources, et 
cetera, performs liaison work by facilitating resolution of 
funding, program, and regulatory issues.
    So that was included in Mr. North's official job 
description with the EPA, and I would like to introduce that 
into the record. Additionally--I'd like to introduce that into 
the record, the job description. Additionally----
    Chairman Smith. Without objection.
    [The information appears in Appendix II]
    Ms. Bonamici. Thank you, Mr. Chairman.
    Additionally, the--there's been a lot of conversation about 
Mr. North's contributions to a letter that was from the tribes, 
and I would really like the record to reflect reality on this. 
I'm certainly not here to defend Mr. North's actions, but it's 
important that we have clarity about exactly what edits Mr. 
North suggested to the tribal petition.
    This is a 12-page letter, and I would like to introduce 
into the record as well a copy of the letter showing the edits 
suggested by Mr. North, and on a 12-page letter, Mr. North 
suggested adding 16 words, suggested deleting 3. These changes 
included correcting a spelling and removing an extra space. So 
I really want these suggested edits to be introduced because I 
just don't see how the strong public accusations we're hearing 
today are confirmed.
    Chairman Smith. Without objection, that will be made a part 
of the record as well.
    [The information appears in Appendix II]
    Ms. Bonamici. Thank you, Mr. Chairman.
    Mr.--Administrator McLerran, thank you again for joining 
us. Some Members have been critical of the EPA and claim that 
they've been--not been open and inclusive in the outreach to 
outside groups during the development of the Bristol Bay 
Watershed Assessment. Specifically, you've heard allegations 
that suggest the opinions and concerns from Pebble were not 
given the same consideration as those from organizations during 
meetings to discuss the assessment.
    So will you please talk in response about how often you 
met, for example, with Pebble? You certainly didn't only meet 
with environmental groups. Tell us about what was discussed at 
those meetings. And I do want have time for another question.
    Mr. McLerran. Certainly. As I said earlier, at EPA we have 
an open door when we do a process like this to folks on all 
sides of these issues, and the Pebble Partnership and other 
proponents of mining in the watershed met with us frequently. I 
met with then-CEO and Board Chair John Shively multiple times 
during the pendency of the watershed assessment and met with 
folks who represented other groups that were asking EPA to wait 
and also seeking input from all of those folks in terms of the 
science and the potential impacts on the watershed and native 
cultures in the Bristol Bay area, so many, many meetings with 
the Pebble Partnership.
    In fact, I went to the mine site three times with the 
Pebble Partnership executives, once with Senator Murkowski, and 
we engaged in listening to presentations from the Pebble 
Partnership about their plans, about what they felt they could 
do to mitigate impacts of mining in the watershed, so an 
extensive engagement on all sides on this issue.
    Ms. Bonamici. And I have a letter, you sent to John 
Shively, the former CEO of Pebble, where it appears that you go 
item by item addressing his concerns. Was that a typical 
practice that you would--in addition to meet with them, respond 
to their concerns in writing?
    Mr. McLerran. Yes. Mr. Shively would request meetings. I 
will call him. He would send letters. I would write him back. 
We had, I think, a good working relationship back and forth.
    Ms. Bonamici. Thank you very much, Administrator McLerran.
    You know, Oregonians and others from the Pacific Northwest 
care a lot about this issue. We've been following it closely. 
In fact, nine of my colleagues from the Pacific Northwest and I 
sent a letter to EPA Administrator McCarthy urging her to use 
the authority given to the EPA under the Clean Water Act to 
protect the Bristol Bay salmon fisheries from the potentially 
devastating impacts of the proposed Pebble Mine. This affects 
the entire region, not just Pebble Bay.
    So despite the claims made by some that the EPA may have 
colluded with groups that opposed the mine, it appears that you 
were very responsive to the concerns raised by Pebble. And I 
tend to agree with the EPA IG report that found no evidence of 
bias in how the EPA conducted the assessment. I hope that the 
Committee today recognizes this so we can move forward and 
address other issues of importance to our constituents.
    Thank you, Mr. Chairman, and I yield back.
    Chairman Smith. Thank you, Ms. Bonamici.
    And the gentleman from Florida, Mr. Posey, is recognized 
for his questions.
    Mr. Posey. Thank you, Mr. Chairman.
    Mr. McLerran, first, let me say that I'm not an advocate 
for the mine, but I wonder if you feel it's appropriate for 
career EPA staff to discuss implications of upcoming 
presidential elections and how it might affect their scientific 
work.
    Mr. McLerran. So I think we all received training and we're 
quite aware of, you know, what our obligations are with respect 
to not engaging in political conduct.
    Mr. Posey. So you think it would not be appropriate?
    Mr. McLerran. I am not aware of the circumstance that 
you're talking about, and----
    Mr. Posey. Okay.
    Mr. McLerran. --would need some more----
    Mr. Posey. So are you aware whether or not EPA employees 
discussed the implications of the 2012 presidential election as 
it might have affected the work conducted on the Pebble Mine by 
EPA?
    Mr. McLerran. I certainly can't recall that.
    Mr. Posey. Okay.
    [Slide.]
    Mr. Posey. On screen is testimony from the committee's 
deposition of the Phil North, which I thought you'd already be 
familiar with. It indicates that Mr. North contemplated the 
impact of the 2012 presidential election with outside parties, 
including Jeff Parker, fellow EPA employee Palmer Hough. Mr. 
North and Mr. Hough are career employees, not political 
employees. Could there be any clearer demonstration that the 
politics was a motivating factor regarding the Pebble Mine for 
the career employees?
    Mr. McLerran. So I have not--I'm not aware of any of those 
communications, and I couldn't make any conclusions about that.
    Mr. Posey. So you'd never seen this deposition----
    Mr. McLerran. No.
    Mr. Posey. --before?
    Mr. McLerran. No, I have not.
    Mr. Posey. But you're not willing to take another look at 
an investigation of what's been before you?
    Mr. McLerran. So----
    Mr. Posey. I mean, you're learning all kinds of new 
information today, you're telling me, and you say it's 
inappropriate. I think you're saying that. But when the 
Chairman asked if you care to look into the issue any further, 
you just keep saying no, it's not necessary.
    From the committee's investigation, it appears clearly that 
political factors beyond science and good public policy played 
a role in EPA's analysis of using a section 404(c) action. And 
the question is, you know, whether or not you considered it 
appropriate for EPA employees to consider political factors in 
preparing supposedly scientific documents.
    Mr. McLerran. So, again, I'm not aware of any of those 
conversations, and I'd have to know more.
    Mr. Posey. You've never seen any of the testimony from the 
depositions that involved Mr. North before?
    Mr. McLerran. No, I have not.
    Mr. Posey. Yes. Yes. I mean, I just think you would want to 
investigate and look at the issues further that when the 
Chairman, you know, suggests that, you say you know all you 
need to know, and yet we have statements that we brought here 
that you tend to agree with are at least somewhat inappropriate 
and maybe we're just trying to insert too much common sense 
here.
    Mr. McLerran. So, again, the Inspector General reviewed 
thousands of emails from EPA employees, found only one EPA 
employee potentially misused his position, and we followed up 
on that and have done training to ensure that that never 
happens again. But I think we've investigated, the Inspector 
General has investigated, and that's appropriate.
    Mr. Posey. Well, I would think--I would think you would 
know that the OIG was not a comprehensive investigation. They 
reviewed emails from only three individuals. It was not a 
comprehensive review of all the documents, as I would think you 
would want just to be a good manager of an agency which you say 
its mission is openness and transparency. And I just would 
think you would want to know more about this. But again, I may 
be trying to inject too much common sense in here, Mr. 
Chairman. My time is up.
    Chairman Smith. Would the gentleman yield very briefly?
    Mr. Posey. The gentleman yields.
    Chairman Smith. I also want to point out that Mr. North's 
personal emails that he used to conduct business all 
disappeared, which is suspicious to a lot of us. But thank you 
for your questions.
    And the gentleman from California, Mr. Takano, is 
recognized for his questions.
    Mr. Takano. Thank you, Mr. Chairman.
    There seems to be some confusion as to whether EPA has the 
authority to initiate section 404(c) action to protect the 
Bristol Bay watershed. Tom Collier, CEO of Pebble Limited 
Partnership, appears to be very confused about this matter. And 
I would like to put up a quote from Mr. Tom Collier from his 
testimony last November. The quote is up on the screen.
    [Slide.]
    Mr. Takano. In his testimony he said, ``EPA has sought to 
implement the first-ever preemptive veto in the 43-year history 
of the Clean Water Act at Pebble utilizing a little-used 
provision, section 404(c), in a novel and unprecedented way.'' 
That's from Mr. Collier in his testimony.
    Slide 2, please.
    [Slide.]
    Mr. Takano. This is the Federal Register notice from the 
1979--from 1979 of the final rule establishing the procedures 
to be used when EPA is considering the use of section 404(c). 
It clearly states ``In effect, section 404(c) authority may be 
exercised before a permit is applied for, while an application 
is pending, or after a permit has been issued. In each case the 
Administrator may prevent any defined area in waters of the 
United States from being specified as a disposal site or may 
simply prevent the discharge of any specific dredge or fill 
material into the specific area.''
    Now, I call for slide 3.
    [Slide.]
    Mr. Takano. Now, in 1988, during the Reagan Administration, 
the EPA exercised its 404(c) authority, and in its final 
decision stated, ``EPA Region 4 believes that the inclusion of 
the Becker site in this 404(c) action is appropriate even 
though no application for rock plowing this site has yet been 
made.'' Again, it is appropriate even though no application for 
rock plowing. So this 404(c) authority was invoked prior to the 
application for a permit.
    Now, Mr. McLerran, given what I have just read, would you 
agree with Mr. Collier's characterization of the 404(c) 
authority EPA used to protect Bristol Bay watershed? Would you 
agree with his characterization?
    Mr. McLerran. No, sir.
    Mr. Takano. And how do you respond to these kinds of 
assertions that he's made?
    Mr. McLerran. Well, we believe that Congress did provide in 
the Clean Water Act under section 404(c) the authority for EPA 
to review whether, in certain circumstances, there are 
unacceptable adverse effects on a variety of factors, including 
fisheries. And so we believe the authority is clear from 
Congress. We use it sparingly, as I said previously, for 
circumstances where we believe that it's justified and merited 
under the facts. But it is clear authority from Congress.
    Mr. Takano. Has the EPA, under the Obama Administration, 
used this authority preemptively in any other matter or is it 
being considered?
    Mr. McLerran. No, not prior to a permit application.
    Mr. Takano. But the one time it was used in a similar 
fashion was under the Reagan Administration, is that correct?
    Mr. McLerran. So I think there may be two times, once in 
Louisiana, once in Florida, that were both during the Reagan 
Administration.
    Mr. Takano. So it's been used twice before, this authority, 
and both were under the Reagan Administration? Is that what 
you're telling me?
    Mr. McLerran. That's what I believe is the case.
    Mr. Takano. Well, it seems to me that the unique nature of 
Bristol Bay and its support of most salmon populations in the 
Western Hemisphere make it especially suited to the use of 
404(c) authority. Can you please comment on the appropriate use 
of this authority as it relates to Bristol Bay and other unique 
ecosystems?
    Mr. McLerran. So Bristol Bay, again, is a remarkable place. 
It's a place that produces regularly between 35 and 40 million 
sockeye salmon every year, produces all five species of wild 
salmon, and is relatively undisturbed.
    Mr. Takano. Quickly, if I may interrupt, did you ever 
discuss the Florida 404(c) case with Mr. Collier? Did you ever 
have that discussion with him?
    Mr. McLerran. Not that I can recall.
    Mr. Takano. Okay. Well, thank you so much.
    I yield back, Mr. Chairman.
    Chairman Smith. Would the gentleman yield to me real--very 
briefly for a couple of questions?
    One is I'm not suggesting that the gentleman used quotes 
out of context, but I noticed that the sentences before and 
after some of the quotes were obscured, and could you give us 
the entire passage that you excerpted from a few minutes ago?
    Mr. Takano. Of course, Mr. Chairman.
    Chairman Smith. Okay. And second of all, I just want to 
make it clear this is unprecedented under this Administration. 
In the case of the Florida situation, I think the facts are 
entirely different, and we'll share those with the gentleman.
    Mr. Takano. Thank you, Mr. Chairman.
    Chairman Smith. Thank you.
    And the gentleman from Texas, Mr. Babin, is recognized for 
his questions.
    Mr. Babin. Yes, sir. Thank you, Mr. Chairman. I appreciate 
it.
    I'd like to show a document to you, Mr. McLerran, which 
contains notes taken at a meeting with the EPA and Trout 
Unlimited and other groups who petitioned the Agency to invoke 
a pre-application 404(c) action.
    [Slide.]
    Mr. Babin. As you can see, this email indicates that EPA 
employee Richard Parkin is reported to have ``stressed that 
while a 404(c) determination will be based on science, politics 
are as big or bigger factor.''
    Administrator McLerran, one of your closest advisors on 
Pebble Mine Richard Parkin admitted that politics will play as 
large a role as the science in his determination to stop the 
Pebble Mine. If this is the feeling of the Agency, how can the 
judgment and impartiality of the EPA be trusted at all in this 
particular decision?
    Mr. McLerran. So I haven't seen this email before but----
    Mr. Babin. You can now.
    Mr. McLerran. But I can tell you that, as the decision-
maker on this, science was what was important to me. And doing 
the science, conducting a watershed assessment that gave us the 
information about what the potential impacts of large-scale 
mining in the Bristol Bay watershed might be was the most 
important thing to me.
    Mr. Babin. Well, according to your closest--one of your 
closest advisors here, he says that science--it's based on 
science but it's more important to most cases to have politics 
involved. So that kind of contradicts what you just said.
    Was Richard Parkin one of the employees who worked on the 
Bristol Bay Watershed Assessment, the scientific document that 
you assert EPA relied on?
    Mr. McLerran. Yes.
    Mr. Babin. Okay. These notes appear to come from a meeting 
with EPA in Pebble Mine opposition. How often did you meet with 
Trout Unlimited and other groups who urged the EPA to use 
section 404(c)?
    Mr. McLerran. So, as I stated earlier, we had meetings with 
proponents and opponents of mining in the watershed. I can't 
recall how many times I had specific meetings but probably half 
a dozen.
    Mr. Babin. Okay. Well, he conducted the science assessment, 
so was he impartial? Was he impartial or was he not?
    Mr. McLerran. So he was one of a large group of people 
that----
    Mr. Babin. No, no, no----
    Mr. McLerran. --helped prepare----
    Mr. Babin. --was he--do you consider him to be impartial or 
partial if he was the one conducting the science? Yes or no.
    Mr. McLerran. So he was not the only one conducting the 
science.
    Mr. Babin. You're not answering my question, Mr. McLerran. 
Given that the sentiment of EPA employees was that the politics 
of the Pebble Mine situation would trump the science, will you 
reconsider invoking section 404(c) process so that at public, 
transparent, and fair permitting process can be carried out?
    Mr. McLerran. So, again, I've stated my answer to that 
previously. We believe that there has been an open, fair, and 
transparent public process, and there's litigation now pending 
overall of that. But personally, I believe that the process has 
been an incredibly open and transparent and fair process.
    Mr. Babin. Well, you have just said that--or you did not 
answer the question of whether he was impartial or not, so I 
assume you think he possibly was impartial, plus the fact that 
you admitted that the Inspector General's report showed 
possible misuse of EPA employees' positions. But you also 
stated that you have no intention of investigating further.
    And, Mr. McLerran, you've demonstrated a distinct lack of 
fairness and impartiality and sound administrative abilities. 
And you are exactly the type of federal employee or bureaucrat 
that America is really getting tired of. And I would appreciate 
it if you would answer the questions yes or no without beating 
around the bush.
    So I yield back my time.
    Chairman Smith. Thank you, Mr. Babin.
    And the gentleman from Virginia, Mr. Beyer, is recognized.
    Mr. Beyer. Thank you, Mr. Chairman.
    And I'd like to ask unanimous consent to introduce into the 
record a letter from Senator Murkowski to John Shively, Mark 
Cutifani, and Ron Thiessen from July 1, 2013.
    Chairman Smith. Without objection.
    [The information follows:]
    [The information appears in Appendix II]
    Mr. Beyer. And a letter from Mr. John Shively of Pebble 
Beach Partnership to Mr. McLerran dated October 21, 2011.
    Chairman Smith. Okay. Without objection.
    [The information appears in Appendix II]
    Mr. Beyer. And I'd like to quote from Senator Murkowski's 
letter----
    Chairman Smith. Maybe we ought to roll all these together.
    Mr. Beyer. Okay. Yes. She--in this letter she--many 
residents in Alaska are familiar with the ongoing saga that is 
the Pebble Partnership's failure to submit permit applications 
to build their mine. But from Lisa's letter--I have so many 
pieces of paper here--she says, `` At least as far back as 
November 3, 2004, Northern Dynasty Minerals asserted the 
submission of permit applications was imminent.''
    The next paragraph, ``October 12, 2005, another statement 
was issued claiming that a full permitting process . . . was 
slated to begin in 2006.''
    Next paragraph, ``On October 27, 2008, Alaskans were 
assured that those seeking to develop the Pebble deposit were 
on schedule to finalize the proposed development plan in 
2009.''
    Next paragraph, ``February 1, 2010, Alaskans were told that 
PLP was preparing to initiate project permitting under the NEPA 
in 2011.''
    Finally, in the next paragraph, ``June 13, 2013, a PLP 
representative said that you hope to have a project to take 
into permitting this year.''
    She writes basically just very frustrated again and again 
about the permits that never came forward from PLP and its 
predecessors.
    And then Mr. Shively's letter to Mr. McLerran, he suggests 
that Pebble would finish a mine design layout in late 2012.
    So, Mr. McLerran, did they ever finish that layout?
    Mr. McLerran. So the Pebble Partnership has not, to date, 
submitted a permit application, but they did submit in February 
of 2011 a set of mine plans to the Securities and Exchange 
Commission, and that formed the basis for us looking at mine 
scenarios in the Bristol Bay watershed so----
    Mr. Beyer. But they never submitted anything to the EPA?
    Mr. McLerran. They did not submit a permit application, 
still have not, and that has been an enormous frustration to 
many individuals in the Bristol Bay watershed area.
    Mr. Beyer. And is it fair to say that the communities will 
likely be impacted by the construction and the operation of 
Pebble Mine faced a deeply uncertain future about what their 
community was going to become and unless and until either 
Pebble or the EPA acted, that this was essentially a sort of 
Damocles, one way or the other hanging over their heads for a 
generation?
    Mr. McLerran. That's certainly what we heard from many in 
the Bristol Bay area.
    Mr. Beyer. Mr. McLerran, I'd like to push back, too, on the 
relentless assertion by the majority that the EPA's Inspector 
General who found a possible--emphasize possible--misuse of 
position by one employee in a single-person office somehow 
damns the entire organization. Should--is it appropriate for 
the Native American tribes and the community groups to accuse 
you of collusion for having worked with Pebble Mine to work out 
the proper permit process?
    Mr. McLerran. Could you restate that again?
    Mr. Beyer. Are you guilty of collusion for talking with 
Pebble Mine about this?
    Mr. McLerran. No. I would say no.
    Mr. Beyer. Isn't it the requirement in a democracy that our 
government officials meet freely with both sides, with those 
for and against, to try to come to a proper determination about 
how to move forward?
    Mr. McLerran. Yes.
    Mr. Beyer. Is one person with a possible misuse of 
position, which looking at--I estimated it was less than 1/2 of 
one percent of the text in that one letter that he made--added 
15 words, corrected a misspelling, and deleted the word ``and'' 
and ``mining operations'' for clarity, there was nothing 
substantive in that whatsoever. Did you do all the--did you 
follow all the recommendations of the Inspector General for 
additional training and looking----
    Mr. McLerran. We have and concurred with the Inspector 
General's report and have conducted the training that was 
recommended in it----
    Mr. Beyer. Thank you. Thank you. There's a slide that Mr. 
Posey put up. If it's possible to put that back up, it was on 
the testimony, the deposition from Mr. North if it's possible. 
If not, I'll just quote from it. Because I had great difficulty 
understanding how the paragraphs on that page somehow led to 
the sense that this was politically motivated. In fact, he 
says, ``Were you attempting to finish what I presume was the 
draft watershed before the presidential election?'' And he 
said, ``Yes, it would probably be a good idea but also that I 
don't think the EPA, no, the EPA was not trying to finish it 
before that time frame and in fact it was not finished until 
well into 2000--the following year after the presidential 
election was determined.''
    ``And do you recall if you found that--if you discussed the 
impending presidential election?'' I can't ride an elevator or 
walk down a hall around here without discussing the 
presidential election with Democrats and Republicans and 
everyone else. Very difficult to take that and to think that 
that's inserting presidential politics into the determination 
was happening.
    My time is up, Mr. Chairman, but I yield back.
    Chairman Smith. Okay. Thank you, Mr. Beyer.
    The gentleman from Louisiana, Mr. Abraham, is recognized.
    Mr. Abraham. Thank you, Mr. Chairman. Thank you, Mr. 
McLerran, for being here.
    I've flown the back country of Alaska, and I can tell you 
the country is beautiful and the people are just great people 
to be around. And I don't think any of us here in this room 
want any detriment to the environmental beauty of Alaska. We 
just want fair play.
    I do want to go back to a comment that was just made about 
the OIG's finding. The EPA OIG's finding was a ``possible'' 
only because some emails were missing and the IG could not 
conduct future interviews of Mr. Phil North because he had 
actually left the country. So I just wanted to interject that 
and clarify this Phil North thing that has evidently been 
bouncing back and forth.
    I was listening to your testimony at the beginning, words 
such as ``could impact,'' ``potentially do''--and again, all 
these are certainly subjective opinions in based on some of 
your reports that you've gotten from your scientists. And I've 
gone back and I've read some of their reports, even ten years 
plus. And three of those scientists that the EPA contracted 
to--contributed to the BBA assessment Ann Maest, Alan Boraas, 
Carol Ann Woody, they've long been vocal opponents of the 
Pebble Mine way before EPA even hired them to give them their 
opinion.
    You're an attorney. You understand the burden of proof. You 
understand objective data. Do you think it's appropriate for 
the EPA to use information developed by scientists who've 
already predetermined their opinion?
    Mr. McLerran. So I think that the reports that you're 
referring to, the one by Ann Maest was not used in our final 
assessment. And the other two were reports that were submitted 
during the public process where people were commenting on our 
draft watershed assessment. And so when those reports were 
submitted, our Office of Research and Development engaged in 
some independent peer review, asked a contractor to engage some 
independent peer reviewers to look at whether those--whether 
one of those reports was sufficient and scientifically credible 
and concluded that it was.
    I think with respect to the archaeologist who prepared 
sections, again, that was independently peer-reviewed. One of 
the peer reviewers that was independently selected was a 
University of Alaska Fairbanks professor who's been engaged in 
cultural work in Alaska as her career of work, and again, 
independently peer-reviewed the cultural assessment. So----
    Mr. Abraham. I think it just--in my opinion and certainly 
in others that I've talked to, it just adds, you know, to the 
illegitimacy of the report that the EPA put out as to--because 
there just appears to be bias from several of the scientists 
that you guys contracted with.
    And I think you've already answered the question, you know, 
would you reconsider invoking the 401--404(c) process, and I 
think your answer to that was no.
    I am curious. You said that the company itself that wanted 
to develop the Pebble Mine area, what did they say or how 
could--what did they say--how they could mitigate the 
environmental impact? I haven't heard that in any of this 
committee testimony. What did the companies say they could do 
to prevent the salmon from dying and that type of deal? Because 
we don't want the salmon dying. We want the land to stay 
pristine, and we want the fisheries and the fishermen to be 
able to do whatever they want to do. But what did the company 
say about it?
    Mr. McLerran. So, as I said, they submitted literally 
thousands of pages of----
    Mr. Abraham. And just give me the synopsis. I mean, just 
give me the short and dirty of it. What was the final--their 
final opinion?
    Mr. McLerran. So with respect to the fishery, what they 
were proposing was a concept called compensatory mitigation. 
And compensatory mitigation is typically used in watersheds 
that have been previously disturbed where you restore some 
habitat function, where you put--where you might restore some 
wetlands or that sort of thing.
    Here in this watershed, this is a largely undisturbed 
watershed. It's pristine, and we didn't feel that--our 
scientists didn't feel that the compensatory mitigation scheme 
that was proposed would be effective and it----
    Mr. Abraham. And did they say why?
    Mr. McLerran. Because, again, in this watershed nature has 
created a really unparalleled habitat, and for us to be 
believing that we could improve on nature in this particular 
watershed was unlikely.
    Mr. Abraham. That's an odd answer.
    Thank you, Mr. Chairman. I yield back.
    Chairman Smith. Thank you, Mr. Abraham.
    The gentleman from Alabama, Mr. Palmer, is recognized for 
questions.
    Mr. Palmer. Thank you, Mr. Chairman.
    Are you aware if any EPA employees within Region 10 had 
come to the conclusion that EPA should use a section 404(c) of 
the Clean Water Act before EPA had produced any science with 
regard to the impact of the Pebble project?
    Mr. McLerran. So as I stated earlier, there were various 
opinions amongst the staff members, some who felt that 
beginning a 404(c) process, which is a pretty extensive process 
in itself, would be appropriate. There were others that felt 
that we should we wait until a permit application was submitted 
to the Corps----
    Mr. Palmer. Would you take a----
    Mr. McLerran. --and then we ultimately decided to take a 
middle path, which was conducting a scientific review under our 
authorities, our section 104 of the Clean Water Act.
    Mr. Palmer. Let me draw your attention to what Mr. North 
said in his deposition, in his testimony, if you look at that 
slide to your right or left or you may be able to see it there.
    [Slide.]
    Mr. Palmer. He says, as you stated before, you had 
formulated your opinion--and this is our questions to Mr. 
North. ``Your opinion on whether EPA should use section 404(c) 
for the Pebble Mine before a scientific document was prepared 
by the EPA, right?'' And Mr. North testified ``Yes.''
    I've got another slide I want to bring up.
    [Slide.]
    Mr. Palmer. According to the documents obtained by the 
committee, EPA employee Phil North began preparing a record to 
base a preemptive 404(c) action as early as 2009. In an email 
exchange from December 2009 before EPA received any petitions 
for action, Mr. North exchanged emails with EPA employee Mary 
Thiesing. Ms. Thiesing told Mr. North ``Approach it as though 
there will be a 404(c) and we don't need to wait for a new 
Regional Administrator, new RA, to do that. However, we will be 
getting one very quickly and there will be no 404(c) without 
the RA's complete, total, and most importantly, continued buy-
in.''
    Administrator McLerran, this email appears to lay out the 
playbook for initiating a preemptive 404(c) action against the 
Pebble Mine. Is it troubling that EPA employees appear to have 
made up their minds on stopping the Pebble Mine so early in the 
process? Does that bother you?
    Mr. McLerran. So, again, as I stated, there were employees 
with various opinions----
    Mr. Palmer. No, I'm asking you----
    Mr. McLerran. --about how to proceed----
    Mr. Palmer. --does that bother you. I'm not asking you 
about the opinion of the EPA employees. I'm asking you, does it 
bother you that it appears that these people had already made 
up their minds with no scientific evidence?
    Mr. McLerran. So it----
    Mr. Palmer. It's a yes or no.
    Mr. McLerran. It's the job of EPA employees to look at----
    Mr. Palmer. No, sir, it's a yes or no. Does that bother 
you?
    Mr. McLerran. I--you know, I would hesitate to, you know, 
give you a conclusion based on just this----
    Mr. Palmer. No, I'm asking you what it--does it--would it--
let me be hypothetical. Would it bother you if EPA employees 
were acting preemptively without scientific data, without doing 
the due diligence, to go ahead and deny someone a permit? Would 
that bother you?
    Mr. McLerran. So it would bother me if the----
    Mr. Palmer. Thank you.
    Mr. McLerran. --if we didn't have the checks and balances 
that we have.
    Mr. Palmer. Let me read something else from that email that 
bothers me. It goes on to say, ``We will be prepared to give 
the RA a suggested direction when he/she comes on board. This 
thing will be developing for years, and we aren't likely to get 
RA support or headquarters support for preemptive 404(c) on a 
project this big before the information is developed.''
    Now, that really bothers me because that tells me that they 
fully understood what they were doing. They were fully aware 
that if they didn't act preemptively, that the new RA or 
headquarters wouldn't agree on a preemptive 404(c) without the 
scientific data, without the due diligence on a project that 
big. Does that bother you?
    Mr. McLerran. So again, exactly what we did is we engaged 
in an extensive scientific review. We did not invoke 404(c) 
without engaging in the science.
    Mr. Palmer. Well, it says right here that they wanted to 
move on this project before the information was developed. It 
seems that the playbook is laid out in this email and it has 
less to do with establishing the actual science and impacts of 
a project and conducting objective analysis and more to do 
about appealing to politics and optics to achieve a certain 
outcome at the EPA. In your opinion, would that be the correct 
way for an agency to make a decision?
    Mr. McLerran. No, but I don't believe that's what occurred 
here.
    Mr. Palmer. Well, I think that that's what the evidence 
seems to indicate.
    Thank you, Mr. Chairman. I yield back.
    Chairman Smith. Thank you, Mr. Palmer.
    The gentleman from California, Mr. Swalwell, is recognized 
for questions.
    Mr. Swalwell. Thank you, Chair. Thank you, Administrator 
McLerran.
    Just to kind of go back so you can make clear in the 
record, did the EPA, such as in the Office of the General 
Counsel, engage in an examination or analysis of its legal 
ability under section 404(c) before Pebble Mine filed its 
permit? And if so what did it conclude?
    Mr. McLerran. So, yes, the--you know, we did take a hard 
look at what our authorities were and engaged with legal 
counsel throughout.
    Mr. Swalwell. Great. And also, Administrator, your agency 
initially declined to invoke its authority with respect to the 
proposed mine. Eventually, you did so. Can you explain what 
changed?
    Mr. McLerran. So again, we did a very extensive scientific 
review, the Bristol Bay Watershed Assessment. We had a very 
open and transparent process, got literally millions of 
comments on it, a lot of scientific input, and ultimately, we 
concluded that a mine of the scale assessed in the watershed 
assessment would have significant adverse effects upon the 
fishery.
    But what we did do is we did not impose a veto. PLP may 
still be issued a permit. We imposed restrictions on the scale 
of mining in the watershed based on a .25 billion-ton mine, 
which is a mine that is the worldwide average size for 
porphyry, gold, and copper mines.
    Mr. Swalwell. And, Administrator, do you believe the 
criticisms of your agency's methodologies from the majority 
today are valid?
    Mr. McLerran. No. I'm quite proud of the process that we 
conducted. I think it was legally appropriate within the 
authorities that we have and was an incredibly open and 
transparent process.
    Mr. Swalwell. Thank you, Chair. I yield back.
    Chairman Smith. Thank you, Mr. Swalwell.
    The gentleman from Michigan, Mr. Moolenaar, is recognized 
for his questions.
    Mr. Moolenaar. Thank you, Mr. Chairman, and thank you for 
your testimony today.
    If I could, I have a document--a slide that I'd like to 
show you. It has actually three slides involving a proposal for 
initiating an advance 404(c) process for the Pebble Mine 
resented to you by Richard Parkin on August 27, 2010.
    [Slide.]
    Mr. Moolenaar. Are you familiar with this document?
    Mr. McLerran. I actually can't read it in the fine print--
--
    Mr. Moolenaar. Okay.
    Mr. McLerran. --that's on the slide.
    Mr. Moolenaar. Well, it's basically option 3 from the 
options paper. Are you familiar with that? It's basically 
recommending that, you know, going right to the 404(c) process.
    Mr. McLerran. So I don't recall having seen this, and 
again, there were many options papers, multiple drafts of 
options papers, and ultimately, I was the one who made the 
decision that we go forward with a watershed assessment.
    Mr. Moolenaar. Okay. So you're not sure if you've seen this 
document?
    Mr. McLerran. I can't recall having seen this particular 
document.
    Mr. Moolenaar. It seems like a pretty important one. In it 
Mr. Parkin indicates that you should think of the Pebble 
project as a huge open pit mine and tailings reservoir proposed 
for Yellowstone National Park. That would rival this situation 
in many ways but wouldn't have the potential offsite and 
worldwide impacts of this proposal. That's on this slide here.
    Is that how this project was presented to you, that it was 
worse than putting a mine in Yellowstone National Park?
    Mr. McLerran. I don't recall ever having it characterized 
to me that way.
    Mr. Moolenaar. That's amazing to me that--so I just want to 
be clear on the gentleman Richard Parkin, is he one of your 
senior staff? Is he someone you don't know very well or is he 
an advisor?
    Mr. McLerran. Rick Parkin was the acting Office Director 
for our Environmental, Tribal, and Public Affairs Environmental 
Assessment----
    Mr. Moolenaar. Does he report to you?
    Mr. McLerran. At that time he reported, I believe, to 
Michelle Pirzadeh, the Deputy Regional Administrator.
    Mr. Moolenaar. Okay. So he wasn't--I mean, in his document, 
as we go through, he talks about some other things.
    And if I could have another slide.
    [Slide.]
    Mr. Moolenaar. He talks about the EPA recognizing that, 
where possible, it's much preferable to exercise the authority 
to 404(c) before the Corps or the state has issued a permit and 
before the permit holder has begun operations. And is that a 
fair assessment?
    Mr. McLerran. So, again, I don't recall it having been 
characterized to me that way or having that particular 
conversation with Mr. Parkin.
    Mr. Moolenaar. Okay. Okay. He also talks about the EPA--the 
new face of the EPA: open, collaborative, promoting the 
discussion on environmentalism before a decision is made. Would 
you agree with that assessment?
    Mr. McLerran. So, as I said earlier, EPA does have a 
culture of being open to listening to advocates on all sides of 
an issue.
    Mr. Moolenaar. Okay. He doesn't mention sound science in 
his characterization of the new EPA, and I find that very 
interesting that that's not included in the new EPA.
    Mr. Moolenaar. Another thing--and one of the questions I 
have--are you familiar with the term honest broker?
    Mr. McLerran. I've heard that term before, yes.
    Mr. Moolenaar. And would you consider--I mean, you seem to 
be someone who likes to evaluate all sides of an issue for 
making a decision.
    Mr. McLerran. Yes.
    Mr. Moolenaar. Would you characterize Richard Parkin as an 
honest broker when it comes to scientific evidence?
    Mr. McLerran. So--yes, but he was not the decision-maker in 
this instance. I was.
    Mr. Moolenaar. But do you believe that he would give you 
straightforward information just based--scientific information 
rather than political information, for example?
    Mr. McLerran. Yes. In my job as Administrator is to press 
the staff on those types of issues, to----
    Mr. Moolenaar. Okay.
    Mr. McLerran. --to really press around the information that 
I'm receiving.
    Mr. Moolenaar. Well, I want you to know that, you know, 
he--just in some documents that we've received, he talks about 
he wants to sell you on a 404(c) process, he's going to make a 
pitch right to go to option 3. He also talks about political 
fallout if we don't go this option and almost like there's a 
preemptive strike that's necessary before the group that's--
would submit a permit so you wouldn't have to explain yourself, 
you know, why you denied a permit later in the process. Does 
this preemptive strike, does that make sense to you?
    Mr. McLerran. Well, again, the decision that I made was not 
to move immediately to a 404(c) action. The decision I made was 
to conduct three years of independently peer-reviewed science 
in a very extensive, open, public process.
    Mr. Moolenaar. You know, he uses terms like ``We will be 
more successful controlling the spin on a proactive action.'' 
What spin is he talking about?
    Mr. McLerran. I really have no idea.
    Mr. Moolenaar. Okay. And I guess my question to you is 
why--the bottom line is this: Were you acting in the interest 
that you wanted to save the Pebble Mine dollars by doing this 
preemptive action, that you felt like this just should not be a 
place for a mine, why have them spend their time and energy on 
a permit? And as a result, they would spend more dollars. So 
you felt that you were protecting the salmon and saving dollars 
for a useless permit. Is that really what you were trying to 
do?
    Mr. McLerran. So that was really not a major consideration 
for me. I think there was discussion of what was Congress's 
intent in creating the 404(c) authority preemptively and what 
of that, you know, might have been on Congress's mind. But that 
was not a primary consideration for----
    Mr. Moolenaar. But typically, it would be after a permit 
application, would it not?
    Mr. McLerran. So, again, as I've said, we've only used this 
authority 13 times and it----
    Mr. Moolenaar. And why was this so important? Why didn't 
you let the proposal that the mine was advocating for--why 
didn't you take input and let them make a solid proposal that 
you could then either reject or support?
    Mr. McLerran. So, again, the proponents of Pebble Mine, 
Northern Dynasty Minerals, had presented pretty detailed plans 
both in terms of water rights, applications to the State of 
Alaska, and then to the Securities and Exchange Commission.
    Mr. Moolenaar. But not to you?
    Mr. McLerran. Well, again, we had access to those. They 
were public documents, public record.
    Mr. Moolenaar. But they didn't apply for a permit to you?
    Mr. McLerran. They did not, but we had others requesting us 
to use our Clean Water Act authority so----
    Chairman Smith. Okay. The gentleman's time has expired. 
Thank you, Mr. Moolenaar.
    Mr. Moolenaar. Thank you, Mr. Chairman.
    Chairman Smith. The gentleman from Texas, Mr. Weber, is 
recognized.
    Mr. Weber. I thank the Chairman.
    Mr. McLerran, welcome to the committee. I hope you find 
this a judicious use of your time. Good.
    In your exchange with Chairman Smith you said you agree the 
Inspector General could--that there could have been conduct 
that might have occurred which needs some type of adjustment. 
Do you recall that exchange?
    Mr. McLerran. It's over an hour ago now.
    Mr. Weber. Right. Well, sure, but something along those 
lines. And on page five of your testimony you write--and I'm 
quoting--``EPA's 44-year history of judicious use of its 
section 404(c) authority has and continues to ensure 
predictability and certainty for the business community.'' So 
judiciousness, as it were, from your own words, that's a good 
thing, right? You--we all seek to be more judicious.
    You might be interested, I looked up judicious. An example 
they used from dictionary.com is ``using or showing judgment as 
to action or practical expediency; prudent.'' And then it says 
``judicious use of one's money,'' and I would submit that we're 
here to protect taxpayers' dollars.
    In your exchange with the gentleman from Virginia, 
Congressman Beyer, he asked you if you had communicated with 
the mine owners about their permit but you had not been accused 
of collusion. Do you remember that exchange?
    Mr. McLerran. I do.
    Mr. Weber. Okay. But you didn't offer to strengthen their 
process or their permit, as Mr. North did to the opponents of 
the mine. Is that fair? You did not offer to strengthen their 
permit process?
    Mr. McLerran. So in many conversations with the Pebble 
Partnership, we talked about how the scientific information 
that we pulled together might benefit them, as well as our 
decisions.
    Mr. Weber. Okay. Well, if you did, kudos to you. That would 
be a judicious use of taxpayer money, I would offer. And you 
also said in the exchange with Mr. Moolenaar that there were 
multiple drafts of the options papers. Ultimately, you were the 
one that decided to go forward. Was it based on those options 
papers, your decision?
    Mr. McLerran. So, you know, we--as I understand it now, 
there were many options papers, you know, exchanged back and 
forth between staff before I saw options papers.
    Mr. Weber. But you made the decision to go forward based on 
those options papers. That's what you just said with Mr. 
Moolenaar. There were many option papers, but ultimately, you 
were the one that decided to move forward.
    Mr. McLerran. So there was more than options papers that 
went into the decision-making on this.
    Mr. Weber. Okay. But did you see those option papers or did 
you make a decision without seeing those options papers?
    Mr. McLerran. So I saw some final options papers at points 
of which I was briefed or when the Administrator was briefed, 
but----
    Mr. Weber. But you'd already made the decision before you 
saw those options papers?
    Mr. McLerran. No.
    Mr. Weber. Oh, so you did see the options papers before you 
made the decision----
    Mr. McLerran. Well----
    Mr. Weber. --to move forward?
    Mr. McLerran. --I have not seen all of the options papers 
that were exchanged amongst staff that I am now aware might 
have existed.
    Mr. Weber. So is it customary for you to make those kinds 
of decisions without the benefit of all of those options 
papers, all that knowledge?
    Mr. McLerran. Yes, because what happens, you know, and our 
process is we have a lot of back and forth between staff----
    Mr. Weber. Okay.
    Mr. McLerran. --before they present options to leaders.
    Mr. Weber. Mr. McLerran, in 2015, Kim Strassel at the 
``Wall Street Journal'' asked you about your recollection of 
one of those documents prepared which laid out those options, 
and you stated that neither you nor other decision-makers at 
the EPA had ever seen that document. Did you state that to her?
    Mr. McLerran. I did.
    Mr. Weber. Do you stand by that today?
    Mr. McLerran. I do.
    Mr. Weber. But you just testified you saw some of those 
option papers.
    Mr. McLerran. So what I saw was final option papers that 
were documents at the point that I was prepared to make 
decisions----
    Mr. Weber. So someone--someone cherry-picked and chose what 
option papers they wanted you to see?
    Mr. McLerran. Well, again, our process often involves staff 
working back and forth together.
    Mr. Weber. Who--the reports--who would have carried those 
options papers to you and said, Director McLerran, you need to 
look at these option papers? Who would have done that?
    Mr. McLerran. So Rick Parkin typically, you know, would 
have had those discussions, but again----
    Mr. Weber. Okay.
    Mr. McLerran. --the options papers weren't the only 
consideration----
    Mr. Weber. Would you be surprised to learn, Administrator 
McLerran--I know you're having to read fine print here--that we 
have documents that show not only were you briefed on those 
option papers but you actually requested edits to those 
documents?
    Mr. McLerran. So again, you know, there were points at 
which I was presented options papers but not all of the options 
papers that were exchanged back and forth. And while I don't 
recall editing options papers, that's----
    Mr. Weber. North testified--we've got his testimony--that 
he doesn't recall writing the options paper, yet you requested 
edits to it. Does it seem judicious for taxpayer money that 
nobody in EPA seems to understand who wrote the options paper, 
doesn't recall the document--you didn't admit until I think 
just now you made edits on it--with regard to the Pebble Mine, 
and nobody even knows who authored those documents? Is that--I 
mean, are we hiding behind an anonymous author of that 
document?
    Mr. McLerran. I would not call that a fair 
characterization.
    Mr. Weber. You would not--would you call that a judicious 
use of taxpayer money?
    Mr. McLerran. You're asking me to make a conclusion based 
on your characterization----
    Mr. Weber. Well, the American public--you know, we want 
fair and open process. We want to know who's responsible and 
who wrote the documents and how you came to that conclusion 
without collusion, as Mr. Beyer of Virginia asked you about in 
communicating with the owners of the mine. So we--the American 
people expect fair and open process.
    Well, let me just close by saying this. You keep saying 
that the Office of Inspector General looked at these things, 
but the OIG doesn't hire and fire employees in your department, 
is that right?
    Mr. McLerran. That's correct.
    Mr. Weber. You alone have that ability?
    Mr. McLerran. That's correct.
    Mr. Weber. Okay. So I'll go back to what I said earlier 
about judicious. Now, with your exchange with Chairman Smith, 
you said there must have been some impropriety. We heard 
testimony that they looked at three emails. But you still stand 
by your statements you're not willing to investigate and see if 
there were any more improprieties in the department that you 
manage, not the OIG, and that's a judicious use of taxpayer 
resources?
    Mr. McLerran. So just one correction, they looked at over 
8,000 emails, and again, you know, we--Mr. North left the 
Agency before the Inspector General----
    Mr. Weber. So I'm correct that it's three custodians' 
emails. Well----
    Chairman Smith. The gentleman's time----
    Mr. Weber. Mr. Chairman, I yield back. Thank you, Mr. 
McLerran.
    Chairman Smith. Thank you, Mr. Weber.
    Without objection, I'd like to put in the record the 
documents that Mr. Moolenaar referred to in his questioning.
    [The information follows:]*************** INSERT 8 
***************
    Chairman Smith. The gentleman from Arkansas, Mr. Westerman, 
is recognized for his questions.
    Mr. Westerman. Thank you, Mr. Chairman.
    Mr. McLerran, are you aware that employees--I'm over here--
employees at the EPA were building a record for a 404(c) 
process before the Agency ever began working on the watershed 
assessment?
    Mr. McLerran. So, again, as I said, I'm aware now that 
there were employees that had differing points of view on this, 
and some had the point of view that a 404(c) action might be 
appropriate, initiating that action might be appropriate, and 
others who did not.
    Mr. Westerman. And they used taxpayer money to hire a 
contractor to do this work for the EPA to assess the risk of 
the Pebble project as part of building this section 404(c) 
process?
    Mr. McLerran. So I--that's a characterization that I would 
not agree with.
    Mr. Westerman. Well, maybe you wouldn't mind looking at the 
testimony from Phil North. The question says, ``So I just want 
to be very clear, the work that NatureServe, who was the 
contractor, had already been doing, as you've stated, to build 
the record for a 404(c) action, that work just became part of 
the watershed assessment?'' And Mr. North answered, ``That's 
correct.'' ``And money was added onto the contract and 
everything else that was needed to facilitate that?'' And he 
answered, ``Right.''
    So he testified that they'd already been working with 
NatureServe. When the assessment came along, they just took the 
work they'd already done and made that part of the assessment. 
Are you aware or were you aware that NatureServe's work on 
building a record towards the 404(c) action was then just 
transferred over to the watershed assessment?
    Mr. McLerran. I was not aware of that, and again, the 
watershed assessment was peer-reviewed, you know, went through 
a very public and transparent process. So there may have been 
lots of work that went into that, but, again, we stand behind 
the watershed assessment, feel that it was a very well-done 
document, and----
    Mr. Westerman. So you have no problem? That doesn't bother 
you at all?
    Mr. McLerran. So, again, I'm not familiar with that. I'd 
have to look into that.
    Mr. Westerman. So if you were to look into it and found out 
that they had been working on this before the assessment ever 
began, you wouldn't have any problem with that?
    Mr. McLerran. I'd want to determine all of the facts and 
see what the circumstances were.
    Mr. Westerman. But you've already said you don't feel like 
there's any further investigation needed.
    Mr. McLerran. So, again, I'm not familiar with that. I just 
can't make conclusions about that.
    Mr. Westerman. So how can you make a conclusion that no 
further investigation is needed when you're not even familiar 
with what's going on?
    Mr. McLerran. Well, I've--that's been asked and answered, 
I'm afraid.
    Mr. Westerman. Yes, but it doesn't make much sense the way 
it's been answered. And it's already been asked. We've 
reconsidered invoking a 404(c) process as public and 
transparent, but I think the issue is much bigger than that. If 
we look at what happened here and just take it down to the bare 
bones, your agency stacked the deck behind the scenes, and they 
orchestrated a predetermined action or a predetermined outcome.
    Mr. McLerran, just to be honest, your agency appears to be 
more of a taxpayer-funded advocacy group than an impartial 
federal agency. I've only been here a year, but, you know, I 
think back about other testimony we've heard in here about the 
Gold King Mine disaster where, you know, the--maybe the easiest 
way to put it was your EPA employees were scientifically 
incompetent and they were negligent from an engineering 
standpoint. They were much more concerned about covering their 
rears than protecting the environment.
    When we look at that--and whether there's a mine in Alaska, 
I really don't care about that, but what I do care about is if 
you'll screw people over in Alaska or Colorado, you'll screw 
them over in my state as well. So why should anyone else in 
America think you or your agency would ever be transparent and 
fair? And why should we as Congress continue to allow offices 
like yours to exist and spend taxpayer money on them?
    Mr. McLerran. So, again, the process we undertook here, 
which is the one I'm familiar with, was scrupulously fair.
    Mr. Westerman. I yield back, Mr. Chairman.
    Chairman Smith. Thank you, Mr. Westerman.
    The gentleman from Illinois, Mr. LaHood, is recognized.
    Mr. LaHood. Thank you, Mr. Chairman.
    And, Administrator McLerran, thank you for being here 
today. And I would just say at the outset that I have not 
formed an opinion on the merits of this mine and whether it 
should go forward.
    But sitting here listening today, I am concerned about the 
process and how that was not followed in this case. And what I 
think concerns folks and people, particularly back home, and 
what leads to a lot of cynicism in government is when there 
seems to be a predetermined path or there seems to be kind of a 
rigged process. And the nice thing about having depositions is 
it helps us get to the truth, helps give us accurate facts.
    [Slide.]
    Mr. LaHood. And in looking at the deposition of Mr. North, 
and it's up on the screen here, you know, it's clear to me that 
only one option was presented here, and that was the use of 
404(c) to stop the Pebble Mine. In that deposition of Mr. 
North, a question was asked, ``And did you ever try to convince 
anyone else at the EPA that the Agency should use 404(c) 
authority with regards to the Pebble project?'' Answer: ``I 
felt that we should use 404(c), and I made that case.'' Follow-
up question: ``Did you ever present the other part of the case, 
which is not to use 404(c) process?'' ``I don't think I 
presented that.'' That's his answer. Follow-up: ``That was not 
what I presented.''
    So that's clearly laid out there in the series of question-
and-answers under oath by Mr. North. In looking at that 
exchange, Administrator McLerran, it's clear there's only one 
option presented there.
    And I guess in terms of your position, is it appropriate 
EPA protocol for EPA employees to present only one option in 
the Agency?
    Mr. McLerran. So Mr. North was part of a larger group of 
employees who looked at multiple options. Mr. North apparently 
had concluded that initiating 404(c) was the appropriate step, 
but I had other senior advisors, much more senior than Mr. 
North, advocating other options, that we not go forward with a 
404(c) action, that we look at additional science.
    And it was really an extraordinary step to do a watershed 
assessment and to do the science. A lot of science existed 
prior to doing the watershed assessments so people were aware 
of some of that science and they had made conclusions on that.
    But to say that, you know, that was the only 
recommendation, the only option that was in front of me is just 
incorrect.
    Mr. LaHood. Well, again, getting back to my original point 
of what frustrates us is the kind of predetermined kind of 
rigged process. I wish I was more confident in what you just 
mentioned, but the evidence doesn't really bear that out.
    And I would just follow up, you know, in terms of the 
question and answer that I just went through in the deposition, 
you don't dispute any of that in terms of what Mr. North said, 
correct?
    Mr. McLerran. Well, again, I haven't had a chance to review 
his deposition, so I don't know the entire context of what he 
said.
    Mr. LaHood. Okay. Well, what I just said, do you have any 
reason to dispute that?
    Mr. McLerran. I have no reason to dispute that Mr. North 
had his opinions but others had different opinions.
    Mr. LaHood. Well, it appears that in reading through this 
process, though, he influenced a lot of people, including his 
manager Michael Szerlog. And I guess in terms of that 
influence, I mean, he was obviously an important part of this 
process, was living in Alaska. I mean, it appears to me this 
demonstrates the biased manner, and I'm trying to figure out 
how far that went up into EPA. Can you comment on that?
    Mr. McLerran. So, again, I think at the decision-making 
level there was not bias, and I was a key decision-maker on 
this. I approached this with a very open mind. And again, the 
option that I chose to pursue was doing additional science, 
doing the watershed assessment.
    Mr. LaHood. Well, in light of the transcript that I just 
read to you and just showed to you, and hopefully you can 
follow up and look at that, which it sounds like you want to 
do, I mean, it's clear to me there's bias here.
    And I guess my question to you would be in terms of moving 
forward, would you reconsider invoking the 404(c) process so 
that a public, transparent, and fair permitting process can be 
carried out from here forward?
    Mr. McLerran. So, as I've said before, we've had a very 
open, public, and transparent process using our Clean Water Act 
authorities. The 404(c) process has a tremendous amount of due 
process associated with it. The watershed assessment was a very 
open and transparent process that had amazing amounts of due 
process associated with it. So I think we are conducting 
processes that are open and fair and have due process 
associated with it.
    Mr. LaHood. In terms of my question, would you reconsider 
that?
    Mr. McLerran. No, not at this time.
    Mr. LaHood. Those are all my questions, Mr. Chairman.
    Chairman Smith. Thank you, Mr. LaHood.
    The gentleman from Oklahoma, Mr. Lucas, is recognized.
    Mr. Lucas. Thank you, Mr. Chairman.
    Administrator, let's think again about the overall process. 
And I guess I would first ask you, would you agree that 
adhering to the process laid out by NEPA, the National 
Environmental Policy Act, in conducting an environmental impact 
study is the best way to determine the impacts of the project?
    Mr. McLerran. Not necessarily. I think in this instance the 
review of the watershed and the assessment that was done here 
in some ways is quite deeper than what you get in a NEPA 
assessment. Here, we had independent peer-review. You don't 
have that in a NEPA process. Here, we had a focus on ecological 
risks, so this was an ecological risk assessment process that 
we engaged in with the watershed assessment.
    Mr. Lucas. Administrator, are you aware that the National 
Resources Defense Council, a rather powerful Pebble Mine 
opponent, called NEPA and the environmental impact study 
process the Magna Carta of environmental protection?
    Mr. McLerran. So I've seen Tom Collier, the Pebble CEO, 
quote that.
    Mr. Lucas. So do you find it strange that a group like the 
National Resources Defense Council that holds NEPA and the 
environmental impact study process in such high regards wants 
to exclude the Pebble project from that process?
    Mr. McLerran. So, again, I think the NEPA process is a fine 
process. It is an excellent process, but there are other 
processes as well, and the 404(c) process is an independent 
process that has its own rules and due process, and it's a very 
fair----
    Mr. Lucas. It would appear to me----
    Mr. McLerran. --and transparent process as well.
    Mr. Lucas. --Administrator, that this Administration's EPA 
has consistently taken the position that the environmental 
impact study process must be done and that no shortcuts can be 
taken before decisions are made regarding environmentally 
controversial development? So if that's the consistent position 
of the Administration, why is EPA--why can EPA not trust the 
process in this particular instance?
    Mr. McLerran. So, again, the Pebble Partnership could 
invoke the permitting process, could invoke the NEPA process by 
filing a permit with the Corps. They could have done that many 
times over the years, and they chose not to.
    Mr. Lucas. And you made it quite clear in response to a 
number of my colleagues that you won't reconsider invoking the 
404(c) process, and you're consistent in that response, 
correct, Administrator?
    Mr. McLerran. Yes.
    Mr. Lucas. You know, one of the challenging things for 
members of this committee and, for that matter, the public back 
home when dealing with the federal government, agencies within 
the federal government, is trying to understand and play within 
the rules as they are presented.
    You give the impression at least to this member of the 
committee and I suspect folks back home that under your 
leadership and in this particular situation, your part of the 
Agency is willing to pick and choose between the rules and pick 
and choose policies as they see fit at that moment. That's very 
frustrating for those of us in the outside world and for 
members of this committee.
    I would suggest that this seems to point us in a direction 
that perhaps, Mr. Chairman, ultimately, we need to provide 
greater guidance and clarification in the law, that we need to 
provide greater certainty so that those within the Agency 
understand what they should be doing so that those in the 
outside world who have to deal with or contend with have the 
ability to take the right actions in the best interest of the 
environment and the country. This is amazing, and the fact is 
everyone needs to know what the rules are and play by the 
rules.
    And with that, Mr. Chairman, in a frustrated way, I yield 
back.
    Chairman Smith. Thank you, Mr. Lucas.
    The gentleman from Georgia, Mr. Loudermilk, is recognized 
for his questions.
    Mr. Loudermilk. Well, thank you, Mr. Chairman.
    Mr. McLerran, thank you for being here.
    As I was listening to your testimony and the questioning 
here, I heard a frequent assessment by you that you feel that 
the Agency is operating fairly and transparently. Is that a 
fair assessment of your feeling?
    Mr. McLerran. Yes, that is a fair assessment, and I might 
add that the process--the 404(c) process is not complete. There 
still is more due process that would be yet to come and that--
--
    Mr. Loudermilk. So--and summarize what you're saying. The 
EPA is a transparent organization, is operating within the 
scope of the law that was set up a Congress in the public 
interest?
    Mr. McLerran. I believe that to be so.
    Mr. Loudermilk. I wish that was the case, but from my 
experience in the short time I have been in Congress, we have 
had less than transparency out of the Agency. As Chairman of 
the Oversight Subcommittee, we have had countless requests and 
even subpoenas for information from the EPA, and yet we 
continue to not receive the information that we as a 
constitutional body who is given the oversight authority over 
the EPA, including recently receiving several thousand pages of 
garbled junk when we requested information. So that leaves a 
lot of questions not only with this body but also with the 
American people as far as the transparency.
    But I'd like to move on. If we could bring up the slide 
here.
    [Slide.]
    Mr. Loudermilk. We know that Mr. North had frequent email 
conversations with Jeff Parker, who is representing Alaska 
tribes, as well as other agencies or organizations that were 
opposed to the Pebble Mine, and we looked at the--you know, the 
possibility of collusion, but what I want to look at is the 
means and the methods of which that communication has taken 
place.
    Private emails, as you have--are probably aware--seem to be 
a big issue with this Administration. And in this part of the 
deposition it was asked, ``Okay. One of the issues that I think 
comes up in the PLP litigation is the utilization of personal 
email addresses to sometimes communicate while you were working 
from home. Did you do that on occasion when you worked from 
home?'' And Mr. North said yes. The question was then, ``And 
why did you do that?'' Mr. North answered, ``I'm going to give 
two reasons. One is because EPA system's didn't work very well, 
and so in order to communicate with people by email, I had to 
use my home email. The other reason is because there was no 
reason not to. I mean, nobody ever said don't use your home 
email, and sometimes I was sending things off to other EPA 
employees' home emails if they were working at home just 
because it was convenient and there was no reason not to do 
that.''
    Is this appropriate conduct for EPA employees?
    Mr. McLerran. So I believe at that point in time the EPA 
policy was that if people used personal email, they were to 
forward those emails to the EPA server. I don't believe it is 
appropriate to use personal email, and I think we've trained 
our employees that that's not--certainly in subsequent years, 
that that's not the way to communicate.
    Mr. Loudermilk. Are you aware that he had used his personal 
email? Did you know at that time he was using his personal 
email?
    Mr. McLerran. I did not. I've, you know, subsequently 
become aware that as the IG became involved.
    Mr. Loudermilk. Is this a violation of the Federal Records 
Act to use a personal email address to communicate on official 
business and not courtesy copy the EPA server?
    Mr. McLerran. So I'm not that familiar with the Federal 
Records Act to actually make that conclusion. I, of course, 
have taken the training, and the training that we get is to use 
our EPA email addresses, and if out of necessity--you know, if 
the system is down or you're forced to use your personal email, 
forward it to the EPA server.
    Mr. Loudermilk. So you're not familiar with the Federal 
Records Act. Is it not there to ensure that public records are 
there for transparency and fairness, as you stated that your 
agency operates but you're not aware of what the policies are?
    Mr. McLerran. So, again, I'm aware of what the policies 
are.
    Mr. Loudermilk. Do you use your personal email address?
    Mr. McLerran. No.
    Mr. Loudermilk. You do not? You have not used your personal 
email account for business?
    Mr. McLerran. So the only times I've used my personal email 
address would be if I had a large document to review and I 
might forward that from my EPA address, but that's the only 
time.
    Mr. Loudermilk. So the Federal Records Act, part of the 
reason that we have that is to make sure that there is 
transparency. And when it is not used, it really causes some 
problems. In fact, your own Inspector General was not able to 
obtain those personal emails that were sent by Mr. North.
    That brings us to question is sometimes this used just to 
avoid the Freedom of Information Act?
    Mr. McLerran. So, again, our policies are clear. Our 
policies are that people need to use their EPA email, and if 
they had occasion to use personal email, to forward those 
emails and documents to the EPA servers so that records would 
be----
    Mr. Loudermilk. Are there other employees in the EPA that 
are currently using their personal email accounts?
    Mr. McLerran. They should not be.
    Mr. Loudermilk. If they are, are they dealt with 
administratively, disciplinary?
    Mr. McLerran. I have not had the occasion to experience 
that because our policies and our training are very clear on 
that.
    Mr. Loudermilk. Okay. I see my time is expired, Mr. 
Chairman. I yield back.
    Chairman Smith. Thank you, Mr. Loudermilk.
    The gentlewoman from Texas, the Ranking Member is 
recognized.
    Ms. Johnson. Thank you very much, Mr. Chairman.
    I have a letter here that has been posted publicly from a 
group of Texas sportsmen who also recognize the value of 
Bristol Bay, and they write, ``Just like we say, don't mess 
with Texas. Texans don't want anyone messing with the special 
places where we hunt and fish. The hunting and fishing 
community may have its differences, but one thing that unites 
us is our commitment to protecting Bristol Bay, Alaska, from 
the proposed Pebble Mine.'' I just thought that would be nice 
for the record.
    Chairman Smith. Without objection.
    [The information appears in Appendix II]
    Chairman Smith. I believe this is the group that's funded 
by a millionaire who opposes the mine, but that's okay.
    Ms. Johnson. You like rich people.
    Chairman Smith. Before we adjourn, Zach, will you stand up? 
I'd like to recognize our Communication Director Zach Kurz, who 
will be leaving the committee this week after 11 years of great 
service, which is much appreciated.
    Zach is a native of upstate New York, otherwise known as 
far north Texas. Zach started working on the Science Committee 
as an intern for Chairman Sherry Boehlert, continued as Press 
Secretary for Chairman Ralph Hall, and then as Communications 
Director for all of us.
    We wish Zach and his wife Libby and daughter--relatively 
new daughter Zoe all the best as they embark on a new 
adventure. Zach, please stay in touch with us. We will miss 
you, and thanks for all your great work.
    Mr. Kurz. Thank you, sir.
    Chairman Smith. And we thank the witness for his testimony 
and the Members for their questions. The record will remain 
open for two weeks for additional written comments and written 
questions from Members. And the hearing is adjourned.
    [Whereupon, at 12:00 p.m., the Committee was adjourned.]

                               Appendix I

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                   Answers to Post-Hearing Questions




                   Answers to Post-Hearing Questions
Responses by The Hon. Dennis McLerran

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]



                              Appendix II

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                   Additional Material for the Record




         Document submitted by Representative Suzanne Bonamici
         
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           Document submitted by Representative Donald Beyer
           
           
           
           


         Document submitted by Representative John R. Moolenaar
         
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                  Document submitted by Ranking Member
                         Eddie Bernice Johnson
                         
                         
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                              Appendix III

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                                 Slides




                Slides submitted by Chairman Lamar Smith
                
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           Slide submitted by Representative Randy Neugebauer
           
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              Slide submitted by Representative Bill Posey
             
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             Slides submitted by Representative Mark Takano
             
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             Slide submitted by Representative Brian Babin
             
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             Slide submitted by Representative Gary Palmer
             
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          Slide submitted by Representative John R. Moolenaar
          
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           Slide submitted by Representative Bruce Westerman
           
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             Slide submitted by Representative Darin LaHood
            
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           Slide submitted by Representative Barry Loudermilk
           
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